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Measures for Administrative Reconsideration on Labor and Social Security
2008-04-09 打印本页
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Measures for Administrative Reconsideration on Labor and Social Security
(Promulgated by Decree No .5of the Ministry of Labor and Social Security on November, 23 1999)

Article 1   These Measures are formulated in accordance with the Law of the People’s Republic of China on Administrative Reconsideration for the purpose of preventing and redressing illegal or inappropriate specific administrative acts, protecting the lawful rights and interests of citizens, legal persons and other organizations, and safeguarding and supervising the exercise of powers by labor and social security administrative departments in accordance with law.

Article 2   These Measures are applicable to citizens, legal persons or other organizations who hold that a specific administrative act has infringed upon their lawful rights or interests and apply to labor and social security administrative departments for administrative reconsideration, and labor and social security administrative departments that accept applications for administrative reconsideration and make decisions accordingly.

Article 3   Citizens, legal persons or other organizations may file an application for administrative reconsideration where they refuse to accept the following specific administrative acts taken by labor and social security administrative departments:

(1) an administrative sanction, such as a warning, fine, confiscation of illegal gains and property, order to suspend production or business operation, or rescission of licenses and permits;

(2) a refusal by labor and social security administrative departments to issue a permit or a license or a qualification certificate for which they hold that they are legally qualified, or a failure of the labor and social security departments to deal with an application within legally prescribed periods in accordance with law;

(3) an administrative decision altering, suspending or revoking a permit, a license or a qualification certificate:

(4) failures of labor and social security administrative departments to deal with, in accordance with law, their applications for examination, approval or registration of relevant items, for which they hold that they are legally qualified to apply ;

(5) an infringement upon their lawful decision-making power in business operation, such as the decision-making power of recruitment of employees or the right to wage distribution;

(6) failures of the labor and social security administrative departments to perform their statutory duty of protecting the rights of the employees to labor remuneration, rest or vacation, or social insurance entitlement, for which they have applied;

(7) an illegal fee charge or illegal demand to perform duties by the labor and social security administrative departments;

(8) a specific administrative act by labor and social security administrative departments in relation to the determination of work injuries; and

(9) other specific administrative acts by labor and social security administrative departments held to have infringed upon their lawful rights and interests.

Article 4   Where citizens, legal persons or other organizations consider illegal the regulatory documents other than laws, regulations, rules and/or documents of the State Council, which are the basis of the specific administrative acts of the labor and social security administrative departments, while applying for administrative reconsideration of the specific administrative acts they may also apply to labor and social security administrative reconsideration organs for examination of the said regulatory documents.

Article 5   Citizens, legal persons or other organizations shall not file an application for administrative reconsideration with regard to the following matters:

(1)Labor disputes between employees and employers arising from the implementation of laws, regulations, rules and other regulatory documents concerning labor and social security;

(2)Conclusions drawn by a labor capacity appraisal committee concerning the degree of their disability, which they refuse to accept;

(3)Decisions or awards made by a labor dispute arbitration committee which they refuse to accept;

(4)Cases that have been brought for administrative lawsuits before and accepted by a people’s court in accordance with law; and

(5)0ther matters provided for by laws or regulations.

Article 6   Where citizens, legal persons or organizations refuse to accept specific administrative acts by labor and social security administrative departments at or above the county level, they may file an application for administrative reconsideration, either at the labor and social security administrative department at the next higher level, or to a people’s government at the same level.

Article 7   Where citizens, legal persons or organizations refuse to accept a specific administrative act by entrusted not-for-profit institutions, such as employment service agencies, vocational skill appraisal and occupational guidance agencies, or township labor management organizations, they may file an application for administrative reconsideration, either at a labor and social security administrative department at the next higher level to the entrusting labor and social security administrative departments, or to a people’s government at the same level as the said labor and social security administrative department. The entrusting labor and social security administrative department is a respondent to the application.

Article 8   Where citizens, legal persons or organizations refuse to accept a specific administrative act by a labor and social security administrative department together with other State organs in their common name during a joint law-enforcement inspection, they may file an application for administrative reconsideration to their common administrative organs at a higher level. The labor and social security administrative department that jointly takes the specific administrative act is one of the respondents to the application.

Article 9   The legal office or the office in charge of legal affairs of the labor and social security administrative department (hereinafter referred to as the legal office), upon receipt of an application for administrative reconsideration, shall give a clear indication of the receipt date and examine the application within five days. The labor and social security administrative department shall make a decision in accordance with the following provisions:

(1)Where the application for administrative reconsideration complies with statutory requirements for acceptance and is within the scope of administrative reconsideration of the administrative department, it shall decide to accept the application and draft the Notice of Acceptance of Application for Administrative Reconsideration, which shall be served on the applicant and the respondent. The date of acceptance of the application shall be given in the Notice;

(2)Where the application for administrative reconsideration complies with statutory requirements for acceptance but is not within the scope of administrative reconsideration of the administrative department, it shall advise the applicant in writing to apply to the department concerned;

(3)Where the application for administrative reconsideration does not comply with statutory requirements for acceptance, it shall decide to reject the application and draft a Decision of Rejection of Application for Administrative Reconsideration, which shall be served on the applicant. The reason for rejection shall be given in the Decision.

Article 10   Where any other agencies of the labor and social security administrative department receives an<

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