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Decree of Shanghai Municipal People's Government No. 36

04-02-2021


Provisions of Shanghai Municipality on Administrative Response to Litigation Cases were adopted at the 97th Routine Meeting of the Municipal Peoples Government on August 31, 2020, are hereby promulgated. They shall be effective as of January 1, 2021.

  Mayor Gong Zheng

 September 10, 2020

 

 

Provisions of Shanghai Municipality on Administrative Response to

Litigation Cases

(Promulgated by Decree No. 36 of Shanghai Municipal People's Government

on September 10, 2020)

 

Article 1 (Purpose and Basis)

With a view to standardizing and safeguarding this Municipality's administrative response to litigation cases, effectively resolving administrative disputes, protecting the legitimate rights and interests of citizens, legal persons and other organizations, and urging administrative organs to exercise their functions and powers according to law, these Provisions are formulated in accordance with the Provisions of the Administrative Procedure Law of the People's Republic of China and other laws and in the light of the actual circumstances of this Municipality,.

Article 2 (Scope of Application)

These Provisions shall apply to the administrative response work of administrative organs in this Municipality.

Article 3 (General Requirements)

Administrative organs shall, in performing their functions and duties of administrative response to litigation cases, defend and lodge proofs in accordance with law, appear in court to response, perform legally effective judgment and accept judicial supervision.

The administrative organ responsible for the rule of law shall do a good job in organizing, coordinating and guiding the administrative response of its own organ.

Article 4 (Guidance and Supervision)

The municipal and district judicial administrative organs shall be respectively responsible for supervising and guiding the administrative response work of the whole Municipality or their own districts.

Article 5 (Guarantees)

The funds needed for administrative response shall be guaranteed by the financial departments at various levels.

Administrative organs shall provide personnel, materials and other necessary guarantees for the administrative response work.

Article 6 (Confidentiality)

Staff members participating in administrative response cases shall enhance their awareness of confidentiality, observe confidentiality discipline, and shall not divulge state secrets, commercial secrets or personal privacy.

Article 7 (Determination of Attorneys)

An administrative organ may entrust its staff members or social lawyers as its attorney in administrative litigation cases. It may entrust one to two attorneys, but can not entrust only social lawyers to be the attorneys.

Administrative organs shall give full play to the role of public lawyers and encourage public lawyers to act on the behalf of their own organs in administrative litigation cases.

Article 8 (Duties and Powers of Attorney)

The attorney shall carry out litigation activities within the limits of authority granted by the administrative organ. The materials submitted to the people's court shall be approved by the entrusting organ, and important information in the progress of litigation shall be promptly reported to the entrusting organ.

Article 9 (Preparation of Response Materials)

After receiving the notification from the people's court on response to the litigation, the administrative organ shall promptly prepare the materials for the response.

The response materials shall include the following contents:

1.bill of defense or attorney’s opinions;

2.evidence;

3.the laws, rules, regulations and normative documents based on;

4.the identity certificate of the legal representative;

5.a power of attorney; and

6.other materials necessary to be submitted.

Article 10 (Bill of Defense)

The bill of defense shall be in a standard form and fully reasoned, and shall contain such contents as the court of acceptance and the case number, the basic information of the defense organ, facts and relevant basis, the main points of view, the request for defense, the signature and date.

Under any of the following circumstances, an administrative organ may raise in its bill of defense:

1.The plaintiff does not have the qualification as the subject to bring the administrative litigation;

2.The plaintiff has once brought a lawsuit against the administrative act being sued;

3.The plaintiff has failed to institute an administrative action within the statutory time limit;

4.The plaintiff has applied for an administrative reconsideration of the sued administrative act, which is still in the process of the administrative reconsideration;

5.An administrative act that subjects to a prior reconsideration has not been reconsidered;

6.This organ shall not be the defendant in the administrative litigation; Or

7.Other elements of litigation that do not conform to the provisions of the law.

Article 11 (Evidential Material)

The administrative organ shall make a catalogue of the evidence submitted, classify and number it one by one, and describe the source, object of proof and content of the evidence material.

Article 12 (Division of Proofing in Reconsidered Cases)

In a case that the administrative reconsideration organ is the co-defendant, the administrative organ that has made the original administrative act shall lodge proofs on the legality of the original administrative act, and the administrative reconsideration organ shall provide assistance. The administrative reconsideration organ shall lodge proofs on the legality of the administrative reconsideration decision.

In a case that the administrative reconsideration organ is the sole defendant, the administrative reconsideration organ shall lodge proofs on the legality of the reconsideration decision, and the administrative organ that has made the original administrative act shall provide assistance.

Article 13 (Submission of Response Materials)

After the response materials have been verified, the bill of defense, the identity certificate of the legal representative and the power of attorney shall be affixed with a seal and be submitted to the people's court on time.

If the administrative organ cannot submit the proof within the time limit due to force majeure or other legitimate causes, it shall, before the expiration of the time limit, submit a written application to the people's court for extending the time limit for proofing.

Article 14 (Observing Court Discipline)

In the course of a court hearing, the person(s) appearing in court on behalf of the administrative organ shall respect the judicial decorum, observe the court discipline, respect the court and other participants in the litigation, and shall not withdraw from the court during the course of the hearing without the permission of the court.

Article 15 (Speech at Court)

The person(s) of the administrative organ appearing in court shall, in accordance with the requirements of the court hearing, fully state the facts and reasons around the focus of the dispute and present relevant evidence and basis, and shall express opinions on the legality and appropriateness of the administrative act, the authenticity, legality, relevance and purpose of the evidence, and the accuracy of application basis.

Article 16 (Appearance in Court for Response by the Chief of an Administrative Organ)

The chief of an administrative organ shall appear in court if an administrative litigation case is tried in court session under any of the following circumstances:

1.cases involving major public interests and great social concern, or causing mass disturbance such as food and drug safety, ecological environment and resource protection, and public health safety;

2.the first case of an administrative organ to be tried in a year;

3.cases that the superior administrative organ considers that the chief of the sued administrative organ should appear in court; or

4.other cases requiring the chief’s appearance in court according to law.

If the chief of an administrative organ appears in court to respond to the lawsuit, his/her identity certificate shall be presented. When attending a court hearing, the chief of the administrative organ shall express opinions to facilitate the substantive settlement of an administrative dispute. The chief of an administrative organ shall include the chief and deputy chief of the administrative organ and the deputy level chief in charge of the implementation of the administrative act being sued, and other responsible persons participating in the implementation.

Article 17 (Checking Written Records)

After the trial, the person of the administrative organ at the court shall check the record of the trial, supplement the omissions and correct the errors, and sign after confirming that there is no error. If necessary, the person may, according to law, request the court for a copy of the transcripts of the trial.

Article 18 (Filing an Appeal)

If an administrative organ refuses to accept a judgment or verdict of the first instance made by a people's court and needs to prosecute an appeal, it shall submit an appeal to a people's court within the statutory time limit.

Article 19 (Application for Retrial

If an administrative organ considers that there is indeed an error in a legally effective judgment, verdict or mediation letter that requires an application for a retrial, it shall submit an application for retrial to the people's court within the statutory time limit.

Article 20 (Submission of Materials for Second Instance and Retrial

At the stage of a second instance or a retrial, if the administrative organ has new evidence or written opinions, it shall submit them in accordance with the provisions of the law or the requirements of the people's court.

Article 21 (Dissent to the Verdict on Suspension of Execution of an Administrative Act

If, during the period of administrative litigation, the administrative organ considers that the verdict to suspend the execution of the relevant administrative act made by the people's court is improper, it shall raise a dissent to the people's court through legal procedures.

Article 22 (Execution of Judgment

The administrative organ shall execute the effective judgment, verdict or mediation letter made by the people's court in a timely manner in accordance with law.

Article 23 (Compensation Expenses

If a people's court makes a judgment that an administrative organ bears the obligation of administrative compensation, the administrative organ shall, in accordance with its authority for budget management, submit a written application for payment to the financial department. Upon reception of the application materials from the organ under the obligation of compensation, the financial department shall process them according to law. If the requirements are met, compensation expenses shall be paid in accordance with the relevant provisions of the budget and the administration of the state treasury.

Article 24 (Seal for Litigation

Administrative organs may, in preparing legal documents for administrative response to the litigation cases, use the seal of their organs or the special seal of their organs for administrative litigation.

Article 25 (Filing of Cases

After the conclusion of an administrative litigation case, the administrative organ shall, in accordance with the relevant provisions, file the case materials. An administrative organ with proper conditions may establish an electronic filing system for administrative case files.

Article 26 (Judicial Proposals and Prosecutorial Proposals

After receiving the judicial proposal or the prosecutorial proposal, the administrative organ shall put forward the corresponding measures and opinions on its handling, and submit them to the people's court or to the people's procuratorate in writing within the prescribed time limit.

Article 27 (Mediation

Judicial administrative organs shall explore the establishment of an administrative dispute mediation mechanism jointly with the people's courts and expand the application scope of non-litigation settlement of administrative disputes. Administrative organs are encouraged to participate in administrative dispute mediation, and conduct people's mediation, administrative mediation and judicial mediation through the whole process of administrative dispute resolution.

Article 28 (Appearance in Court, Listening and Commenting by the Administrative Organ Chief

Where the chief of an administrative organ appears in court, the administrative organ being sued may, in accordance with the actual situation and the characteristics of the case, organize the staff within its unit or its system (region) to attend the trial, and make professional comments on the situation of the person’s response in the court, so as to enhance the ability and consciousness of law-based administration enforcement.

Article 29 (Consulting Experts

Administrative organs may consult legal advisers and relevant experts in handling administrative response cases.

Article 30 (Informatization Construction

Administrative organs shall strengthen the construction of the information-system of administrative response work and perfect the electronic administration and supervision over the whole process of administrative response cases.

The municipal judicial administrative organ shall be responsible for pushing forward the information-based administration for this Municipality’s administrative response cases.

Article 31 (Statistical Analysis

Administrative organs shall regularly conduct statistical analysis of the administrative response made by its own organ. The municipal and district judicial administrative organs shall be responsible respectively for the municipal and district statistical analysis of the administrative response.

Article 32 (Training

Administrative organs shall perfect the training mechanism for response, increase training efforts, raise the ability and comprehensive literacy of relevant personnel to respond to litigation cases, and up-grade the level of team building.

Article 33 (Assessment and Evaluation

Administrative organs shall include the work of administrative response into the scope of the annual work assessment of the organ. The administrative response work shall be included into the scope of administrative assessment in line with the relevant provisions according to law.

Article 34 (Commendation and Reward

Administrative organs shall, in accordance with the provisions of the State and this Municipality, commend and reward the units and individuals who have made significant achievements in the administrative response work.

Article 35 (Accountability

If an administrative organ and/or its staff have violated these Provisions, and have any of the following circumstances that has caused serious consequences, the responsible person(s) shall be given administrative sanctions in accordance with law

1.failure to submit evidentiary materials on time without legitimate reasons

2.refusing to attend court without a legitimate reason or withdrawing halfway without the permission of the court

3.refusing to perform or delaying the performance of a judgment, verdict or mediation letter that has already entered into forceor

4.other serious violations of these Provisions.

Article 36 (Implementation Rules for Response Work

An administrative organ may, in accordance with these Provisions, formulate detailed implementation rules for the administrative response of its organ in the light of its actual work circumstances.

Article 37 (Reference to Implementation

Administrative response cases handled by the organizations authorized by laws, rules and regulations shall be implemented with reference to these Provisions.

Article 38 (Effective Date

These Provisions shall be effective as of January 1, 2021.