289 total views, 2 views today
A complete translation of this document was provided by Jamie Horsley. Some changes have been made to accomodate the site style guide, and further changes may result from the normal use of this site.
Guobanfa  No. 37
May 16, 2018
To all levels of people's government, and to all ministries and commissions directly under the State Council:
Administrative normative documents” are official documents, other than administrative regulations, decisions and orders of the State Council, departmental rules and local government rules, that are formulated according to statutory authority and procedures and publicly issued by an administrative organ or organization authorized by law or regulation and having the function of managing public affairs (hereafter collectively referred to as “administrative organs”) and that involve the rights and obligations of citizens, legal persons and other organizations, have a general binding force and are repeatedly applied within a certain period of time. Formulating and issuing administrative normative documents is an important way for administrative organs to perform their functions in accordance with law and is directly related to the vital interests of the masses and the image of the government. In recent years, various regions and departments have continuously strengthened the formulation and supervision of administrative normative documents and achieved certain results, but the phenomenon of randomly issuing documents and publishing "bizarre" documents still exists to varying degrees, infringing on the lawful rights and interests of citizens, legal persons and other organizations and damaging the credibility of the government. In order to comprehensively put into practice Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era and the spirit of the Party's Nineteenth Congress, implement the Party Central Committee’s and the State Council's arrangements and requirements for advancing law-based administration and building a rule of law government, effectively protecting the lawful rights and interests of the masses and safeguarding the credibility of the government, with the consent of the State Council, the Circular on Strengthening the Formulation, Supervision and Management of Administrative Normative Documents is as follows:
I. Administer strictly in accordance with law and prevent disorderly issuance of documents
(1) It is prohibited to exceed one’s authority to issue documents. Persist in acting only in accordance with legally-prescribed duties, not acting without legal authorization and performing duties in strict accordance with statutory authority. . The system of implementing power and responsibility lists must be strictly implemented, and administrative normative documents may not increase administrative powers beyond those stipulated by laws and regulations or reduce statutory duties; may not enact such matters as administrative licenses, administrative penalties and administrative compulsory measures, increase conditions for handling administrative licensing matters, or stipulate recurring, duplicative or unnecessary certification; may not unlawfully impair the lawful rights and interests of citizens, legal persons and other organizations or increase their obligations, or infringe upon the basic rights of citizens such as personal rights, property rights, personality rights, labor rights, and the right to rest; may not exceed one’s authority to stipulate regulation by the market, corporate and social self-discipline, and citizen self-management matters; and may not unlawfully formulate measures that contain measures to eliminate or restrict fair competition, unlawfully intervene in or interfere with normal production and business activities of market entities, or unlawfully establish market access and exit conditions.
(2) Strictly control the number of documents. Where laws, regulations, rules, and higher-level documents already have clear provisions and active documents have been acted upon and are still applicable, duplicative documents must not be issued; those with similar content should be merged as far as possible, and those that need not be issued or that have no substantive content should never be issued, and it is strictly forbidden to merely copy, paste or forward language from a higher level document as an 'implementation' document. Where it is truly necessary to formulate an administrative normative document, the focus should be on actual results and on relevance and operability, and the text should be strictly controlled to ensure that the policy measure is stated in terms that are rigorous, concise and accurate.
II. Regulate the formulation and issuance procedures and ensure legality and effectiveness
(3) Strict formulation and issuance procedures. Administrative normative documents must be formulated and issued strictly in accordance with statutory procedures and significant administrative normative documents must strictly go through assessment and appraisal, public solicitation of opinions, legality review, collective deliberation and decision and public issuance. The management of formulation and issuance procedures should be strengthened, work mechanisms improved, work procedures perfected and the regulated and orderly formulation and issuance work ensured.
(4) Serious assessment and appraisal. The comprehensive appraisal of the necessity, feasibility and reasonableness of the formulation and issuance of administrative normative documents is an important precondition for their legality and effectiveness. When drafting administrative normative documents, one should assess the anticipated effect and possible impact of the relevant administrative measures, and consider such matters as whether the document complies with laws, regulations and national policies, whether it complies with the socialist core values, and whether it meets the requirements for fair competition review. Experts from relevant fields should be organized to conduct an appraisal of administrative normative documents with relatively strong specialized or technical contents. The conclusions of the assessments and appraisals should be clearly stated in the explanation of the draft document and shall be an important basis for the formulation and issuance of documents.
(5) Widely solicit opinions. Except when they must be kept confidential, administrative normative documents that involve the vital interests of the masses or have a major impact on the rights and obligations of citizens, legal persons and other organizations should be disclosed to society to solicit opinions. The drafting department may publish materials such as the draft documents and their explanations through government websites, press conferences, newspapers, magazines, radio and television, other methods that facilitate the public to know about the draft, and clearly indicate the methods and deadlines for the submission of opinions. For documents that involve the adjustment of major interests of the masses, the drafting department must conduct in-depth investigations and studies, utilizing forums, appraisal meetings and site visits to fully listen to opinions from all parties, especially the opinions of stakeholders. A feedback mechanism for opinions and consultations shall be established, and the reasons for not adopting relatively concentrated opinions and recommendations must be explained at the time of publication.
(6) Strict review and checking. Establishing a mechanism for reviewing the legality of administrative normative documents with complete procedures, consistent powers and responsibilities, and inter-connected and efficient operation is an important guarantee for doing a good job of legality review work. Drafting departments should promptly submit the examination draft and related materials to the general office of the formulating organ and the department responsible for legality review, and ensure the completeness and standardization of the materials. The general office of the formulating organ should review such matters as whether the drafting department strictly followed the stipulated drafting procedures, whether it conducted assessment and appraisal, and whether it solicited opinions widely. The department of the formulating organ responsible for legality review should determine whether the main body, procedures, and relevant contents of the document comply with laws, regulations and rules, and carry out a timely legality review. A draft document that has not undergone legality review, or was found to not be in conformity with the law, and must not be submitted for collective deliberation.
(7) Adhere to collective deliberation. When formulating administrative normative documents, a collective research and discussion system must be implemented to prevent unlawful decision-making, arbitrary decision-making and “captain’s call” decision-making. Administrative normative documents formulated by the local people's governments at various levels should be deliberated and decided by the governmental executive or plenary meeting at the same level, and administrative normative documents formulated by governmental departments should be deliberated and decided by a meeting of the department’s general office. Collective deliberation shall fully promote democracy and ensure that participants at the meeting fully express their opinions, and the collective discussion situation and decision must be truthfully recorded, with different opinions truthfully set forth.
(8) Timely public issuance. After administrative normative documents have been adopted through deliberation or are approved, the formulating organs shall uniformly register, number, print and publicly issue them to society in a timely manner through such channels as government bulletins, government websites, government affairs new media, newspapers, radio, television and public notice columns; they must not be issued and implemented in the form of internal documents, and unpublished administrative normative documents must not be used as the basis for administrative management. . Regarding administrative normative documents involving the vital interests of the masses and a high degree of social attention, and that might impact the government's image, the drafting departments must do a good job of assessing the timing, strengthen public opinion collection after publication of the document, analyze and handle the matter in a timely manner, and proactively respond to concerns, provide explanations through such means as press conferences, media interviews and expert interpretations, making full use of government websites, social media, etc. to strengthen communication and interaction with the public. The people's governments at or above the county level shall gradually construct an administrative normative document information platform for their authoritative issuance, information sharing and dynamic updating, and carry out standardization, refinement and dynamic management of such documents using big data and other technical means.
III. Strengthen oversight and inspection and strictly pursue accountability
(9) Complete responsibility mechanisms. Supervision and inspection by local people’s governments at all levels of their subordinate departments, by higher-level people’s governments of lower-level people’s governments and by various departments with respect to the formulation and issuance of administrative normative documents should be strengthened; and investigation and punishment should be intensified when violations of the lawful rights and interests of citizens, legal persons and other organizations, and injury to the government’s image and credibility, are discovered, and the liability of leading cadres and directly responsible personnel shall be pursued in accordance with discipline and law. Localities and departments that have frequent problems and cause serious consequences should be urged to reform through interviews or special supervision, and publicly exposed when necessary.
(10) Enhance recording supervision. Improve the system for supervising the recording of administrative normative documents, so that documents must be recorded, recording must be reviewed, and errors must be corrected. The formulating organ should promptly submit the documents for recording in accordance with stipulated procedures and time limits and proactively accept supervision. Administrative normative documents formulated by local people's governments at or below the provincial level shall be reported to the people's government at the next higher level and the standing committee of the people's congress at the corresponding level for recording; administrative normative documents formulated by departments of the local people's governments shall be reported to the people's government at the same level for recording; and administrative normative documents jointly formulated by two or more departments of a local people's government shall be submitted by the lead department for recording. For departments that implement vertical management, administrative normative documents formulated by the subordinate departments should be reported to the departments in charge at the next higher level for recording and simultaneously copied to the people’s governments at the same level as the document formulating organ. The departments of local people's governments responsible for recording and review shall strengthen supervision over recording and handle illegal documents in a timely manner, and they may use appropriate methods to report problems discovered during review. Complete mechanisms for the dynamic cleanup of administrative normative documents, and clean up the administrative normative documents of one’s own region and departments in accordance with the requirements for comprehensive deepening of reforms and comprehensive law-based governance and the needs of economic and social development, as well as the situation regarding the formulation, revision, and repeal of superior law and higher-level documents. Fully utilize the power of social supervision to complete systems for review and recommendations by citizens, legal persons and other organizations for administrative normative documents. Collaboration and cooperation among party committee, people's congress, government and other organizations with recording work systems shall be strengthened, and a linkage mechanism for recording and review are to be established. The establishment of a working linkage mechanism with the people's courts and the people's procuratorates is to be explored, to promote joint efforts between administrative supervision and judicial supervision to promptly discover and correct illegal documents.
(11) Strengthen supervision and assessment. The management system for formulating and issuing administrative normative documents is to be improved, and the role of the government's supervision mechanism given full play, to bring administrative normative document formulation, supervision and management work into the content of rule of law government construction, and include it in law-based administration assessments, to be listed in the indicator system for evaluating rule of law government construction. A system for situational supervision and reporting shall be established, whereby work that is well implemented shall be reported with praise, and work that is implemented poorly shall be reported with criticism.
All regions and departments are to, as required, step up self-examination and self-correction regarding the documents of their own region and departments, and promptly correct problems that are discovered, such as "bizarre" documents that violate laws, regulations and national policies or infringe on the lawful rights and interests of the masses, and impose strict accountability in accordance with relevant provisions for those that create serious impacts. During the process of institutional reforms, it is important to do a good job of linking the cleanup and implementation of administrative normative documents. Newly formed government departments or those whose responsibilities have been adjusted must clean up the administrative normative documents that they are responsible for implementing; where documents need to be revised, they are to be promptly revised; where they do not need to be revised, do a good job of the linking work, continuing to implement the documents to ensure the performance of duties in accordance with law.
All regions and departments should timely inform the Ministry of Justice about the implementation of this Circular and significant issues encountered during the work.
General Office of the State Council
May 16, 2018
(for public release)