Decree of the General Administration of Customs of the People’s Republic of China No. 166

The Rules of the General Administration of Customs of the People’s Republic of China on Administrative Reconsideration, which were deliberated and adopted at the Executive Meeting of the General Administration of Customs on August 29, 2007, are hereby promulgated and shall come into force as of November 1, 2007. The Rules of the General Administration of Customs of the People’s Republic of China on Implementing the Administrative Reconsideration Law promulgated in the form of Decree No. 78 of the General Administration of Customs on August 30, 1999 shall be repealed simultaneously.

Mu Xinsheng

Minister

General Administration of Customs

 

September 24, 2007

Rules of the General Administration of Customs of the People’s Republic of China on Administrative Reconsideration

 

(Adopted at the Executive Meeting of the General Administration of Customs on August 29, 2007, promulgated in the form of Decree No. 166 of the General Administration of Customs of the People’s Republic of China on September 24, 2007, and effective as of November 1, 2007)

Chapter I General Provisions

Article 1 These Rules are formulated in accordance with the Administrative Reconsideration Law of the People’s Republic of China (hereinafter referred to as the Administrative Reconsideration Law), the Customs Law of the People’s Republic of China (hereinafter referred to as the Customs Law) and the Regulations of the People’s Republic of China on Implementing the Administrative Reconsideration Law (hereinafter referred to as the Regulations on Implementing the Administrative Reconsideration Law) for the purposes of regulating Customs administrative reconsideration, and bringing into play the role of the administrative reconsideration system in settling administrative disputes and building a law-based Customs administration and a harmonious socialist society.

Article 2 These Rules apply to the application filed with Customs by citizens, juristic persons or other organizations for administrative reconsideration in the belief that a specific administrative act of Customs has infringed his/her/its legitimate rights or interests, and to the handling of administrative reconsideration matters by Customs.

Article 3 Customs administrative reconsideration authorities at all levels shall discharge the responsibilities of administrative reconsideration in good faith, offer guidance and support for the units working under them that are responsible for legal affairs (hereinafter referred to as Customs administrative reconsideration bodies) to handle administrative reconsideration matters in accordance with law, deploy, reinforce and adjust staff dedicated to administrative reconsideration in accordance with relevant provisions, and provide a financial guarantee for the work of administrative reconsideration, so as to keep the case-handling capacity of the Customs administrative reconsideration bodies in alignment with their tasks.

Article 4 Customs administrative reconsideration bodies shall perform the following functions:

(a) accept and process applications for administrative reconsideration;

(b) make inquiries with relevant organizations and persons for investigations and evidence obtaining, consult relevant documents and materials, and organize administrative reconsideration hearings;

(c) examine the legality and appropriateness of specific administrative acts against which applications for administrative reconsideration have been filed, draw up administrative reconsideration decisions, preside over administrative reconsideration mediations, and examine and approve administrative reconsideration conciliations;

(d) handle Customs administrative indemnification matters;

(e) as prescribed in Article 33 of the Administrative Reconsideration Law, handle matters related to the enforcement of Customs administrative reconsideration decisions in accordance with law or apply to a people’s court for enforcement of the decisions;

(f) process or transfer the applications filed by applicants in accordance with Article 31 of these Rules for review of relevant provisions;

(g) guide and supervise the work of administrative reconsideration of the Customs at a lower level, and put forward reconsideration opinions in accordance with relevant provisions;

(h) put forward recommendations of punishment, in accordance with the prescribed jurisdiction and procedures, for acts of the Customs at a lower level or the divisions and personnel thereof that have breached the Administrative Reconsideration Law, the Regulations on Implementing the Administrative Reconsideration Law or the provisions of these Rules;

(i) handle or organize the handling of matters in response to administrative proceedings initiated due to objection to a specific Customs administrative act;

(j) handle matters related to statistics compilation and recordation of administrative reconsideration cases, responses to administrative proceedings, and administrative indemnification cases;

(k) look into problems identified in the course of administrative reconsideration, make timely recommendations to relevant authorities and departments, and in the case of major problems, report to administrative reconsideration authorities in a timely fashion; and

(l) any other matter related to administrative reconsideration.

Article 5 Staff dedicated to Customs administrative reconsideration (hereinafter referred to as administrative reconsideration personnel) shall have the following qualifications:

(a) being a civil servant of the State;

(b) having good political and professional qualities;

(c) having graduated as a law major from an institution of higher learning, or, in the case of a person other than a law major, having graduated from an institution of higher learning and acquired the professional knowledge of law;

(d) having worked with Customs for more than two (2) years; and

(e) having a certificate of investigation issued by the General Administration of Customs after passing the relevant examination or evaluation.

Customs administrative reconsideration authorities at all levels shall offer support and encouragement for administrative reconsideration personnel to take the national judicial examination. Customs personnel who have been admitted to the bar or acquired the qualifications for employment in the field of law may be given priority in the process of recruitment of administrative reconsideration personnel.

Article 6 Administrative reconsideration personnel are entitled to the following rights:

(a) protection by law in discharging the responsibilities of administrative reconsideration in accordance with law;

(b) obtaining working conditions necessary for discharging his/her responsibilities;

(c) making recommendations for the work of administrative reconsideration;

(d) attending training programs; and

(e) any other rights as prescribed by laws, administrative regulations and Customs rules.

Administrative reconsideration personnel shall observe the following obligations:

(a) strictly abide by the Constitution and law;

(b) handle administrative reconsideration cases based on facts and law;

(c) be dutiful, committed, clean-handed and impartial in discharging their responsibilities and dispensing justice;

(d) guarantee the legitimate rights and interests of participants in administrative reconsideration in accordance with law;

(e) keep the confidentiality of State secrets, commercial secrets, Customs work secrets and personal privacy of individuals;

(f) safeguard the national interests and the public interests of society, as well as the legitimate rights and interests of citizens, juristic persons or other organizations; and

(g) any other obligations as prescribed in laws, administrative regulations and Customs rules.

Article 7 Customs administrative reconsideration authorities shall, in performing the functions of administrative reconsideration, follow the principles of legitimacy, impartiality, transparency, timeliness and convenience for the people, adhere to administration by law, and make corrections whenever mistakes occur, so as to ensure the correct implementation of laws, administrative regulations and Customs rules.

Article 8 Customs administrative reconsideration authorities shall, through bulletin boards, notice boards, Customs portal websites, and other easily accessible channels, announce the scope of administrative reconsideration, conditions for application acceptance, format of applications for administrative reconsideration, procedures of administrative reconsideration case handling, implementation procedures of administrative reconsideration decisions, and other matters of administrative reconsideration within their respective jurisdiction.

Customs administrative reconsideration authorities shall establish a mechanism for inquiry on the progress of processing of administrative reconsideration cases and make an announcement thereon, so that applicants and any third parties concerned can have timely access to information on their rights and obligations in relation to administrative reconsideration.

Customs administrative reconsideration bodies shall make explanations to applicants and any third parties concerned regarding their questions about the conditions for acceptance of applications for administrative reconsideration, ways and time limits for handling such cases, reasons and grounds on which administrative reconsideration decisions are based, implementation of administrative reconsideration decisions and other matters related to administrative reconsideration.

Chapter II Scope of Customs Administrative Reconsideration

Article 9 Under any of the following circumstances, a citizen, juristic person or other organization may apply to Customs for administrative reconsideration:

(a) The citizen, juristic person or other organization refuses to accept Customs’ warning, fine, confiscation of goods, articles, means of transport or special equipment, recovery of amounts equivalent to the value of goods, articles or means of transport that are unable to be confiscated, confiscation of illegal gains, suspension of engagement in relevant business or practicing, revocation of registration, cancellation of qualifications as Customs brokers, or any other administrative penalty decision;

(b) The citizen, juristic person or other organization refuses to accept Customs decisions to seize relevant goods, articles, illegal gains, means of transport or special equipment;

(c) The citizen, juristic person or other organization refuses to accept a mandatory administrative measure imposed by Customs to restrict personal freedom;

(d) The citizen, juristic person or other organization refuses to accept a mandatory administrative measure imposed by Customs to withhold relevant goods, articles, means of transport, account books, documents, or other assets, or to seal up relevant import or export goods, account books or documents for safekeeping;

(e) The citizen, juristic person or other organization refuses to accept a specific Customs administrative act of asking for a security;

(f) The citizen, juristic person or other organization refuses to accept a mandatory enforcement measure taken by Customs;

(g) The citizen, juristic person or other organization disagrees with Customs regarding who should be the payer of relevant duties and/or taxes, or regarding determination of dutiable value, commodity classification or origin of goods, applicable tariff rate, tax rate or exchange rate, duty and/or tax reduction or exemption, duty recovery or refund, levying of any late fine, methods employed for calculating and levying duties and/or taxes, location of duty and/or tax payment, or any other specific Customs administrative act related to payment of duties and/or taxes (hereinafter referred to as duty and/or tax payment dispute);

(h) The citizen, juristic person or other organization has filed an application for Customs administrative license or approval in the belief that relevant statutory conditions are already met but Customs fails to handle the matters in accordance with law;

(i) The citizen, juristic person or other organization refuses to accept Customs’ inspection of the relevant means of transport, premises, goods or articles, or the taking of any other Customs control measure;

(j) The citizen, juristic person or other organization refuses to accept an order issued by Customs for returning the relevant shipment, not releasing, making corrections, dismantlement, or selling, or any other administrative decision made by Customs;

(k) The citizen, juristic person or other organization refuses to accept a post-clearance audit decision or any other specific administrative act of post-clearance audit made by Customs;

(l) The citizen, juristic person or other organization refuses to accept the enterprise classification decision made by Customs or a measure of management taken pursuant to the classification decision;

(m) The citizen, juristic person or other organization believes that Customs has failed to take due measures to protect an intellectual property right in accordance with law, or refuses to accept a measure taken by Customs to protect an intellectual property right;

(n) The citizen, juristic person or other organization believes that Customs has failed to handle the acceptance of declaration, release or any other Customs procedure in accordance with law;

(o) The citizen, juristic person or other organization believes that Customs has illegally collected a delayed declaration fee or any other fee, or illegally asked for the observance of any other duties;

(p) The citizen, juristic person or other organization believes that Customs has failed to discharge its statutory responsibilities, as prescribed by law, of protecting relevant personal or property rights or interests;

(q) The citizen, juristic person or other organization believes that a specific administrative act of Customs in the process of disclosing government information has infringed his/her/its legitimate rights or interests; or

(r) The citizen, juristic person or other organization believes any other specific administrative act of Customs has infringed his/her/its legitimate rights or interests.

With respect to the duty and/or tax payment disputes as mentioned in item (g) of the preceding paragraph, the citizen, juristic person or other organization shall first apply to a Customs administrative reconsideration authority for administrative reconsideration in accordance with the provisions of the Customs Law. Where he/she/it refuses to accept the decision of administrative reconsideration made by Customs, it may then bring the case to a people’s court for an administrative proceeding.

Article 10 These Rules do not apply to cases where Customs staff refuse to accept the punishment imposed on him/her by Customs or other decision on staff management made by Customs in relation to him/her, and make an appeal in accordance with the provisions of relevant laws and administrative regulations.

Chapter III Application for Customs Administrative Reconsideration

Section One Applicants and Third Parties

Article 11 Applicants for Customs administrative reconsideration refer to citizens, juristic persons or any other organizations that apply for administrative reconsideration in accordance with the provisions of these Rules.

Article 12 In the case of death of a citizen who is entitled to apply for administrative reconsideration, his/her close relatives may apply for administrative reconsideration instead.

Article 13 In the case of termination of a juristic person or any other organization which is entitled to apply for administrative reconsideration, citizens, juristic persons or other organizations that succeed to its rights may apply for administrative reconsideration instead.

Where, after a juristic person or any other organization commits an act in violation of the Customs Law, a merger, division or any other circumstance of assets realignment occurs to it, and Customs takes the original juristic person or organization as an interested party and imposes administrative punishment on the original juristic person or organization, and takes the juristic persons or organizations that succeed to its rights and obligations as the parties on which the punishment is to be executed, such parties on which the punishment is to be executed may apply for administrative reconsideration in their own name.

Article 14 Where, during the process of administrative reconsideration, a Customs administrative reconsideration body believes that a citizen, juristic person or any other organization other than the applicant has a stake in the specific Customs administrative act under scrutiny, it shall notify the citizen, juristic person or organization to participate in the administrative reconsideration as a third party.

Where, during the process of administrative reconsideration, a citizen, juristic person or any other organization other than the applicant believes that it has a stake in the specific Customs administrative act under scrutiny, it may apply to the competent Customs administrative reconsideration body for participation in the administrative reconsideration as a third party. Where applying for participation in the administrative reconsideration as a third party, the applicant shall be responsible for burden of proof of the stake it has in the specific Customs administrative act under scrutiny.

In notifying a third party to participate in administrative reconsideration or agreeing to the participation of a third party in administrative reconsideration, Customs shall issue a Notification on Participation in Administrative Reconsideration As a Third Party, and serve it on the third party concerned.

Failure of any third party concerned to participate in administrative reconsideration does not affect the handling of any administrative reconsideration case.

Article 15 An applicant or a third party concerned may entrust one or two agents to participate in administrative reconsideration.

Where an agent is entrusted to participate in administrative reconsideration, a power of attorney shall be presented to the competent Customs administrative reconsideration body. The power of attorney shall bear the following particulars:

(a) the name of the principal, and if the principal is a juristic person or other organization, the name and title of its legal representative or chief person-in-charge;

(b) the name, gender, age, occupation, address and postal code of the attorney;

(c) matters covered by the power of attorney and duration of the power of attorney;

(d) scope of power delegated to the attorney, including the power of initiating, changing and withdrawing the application for administrative reconsideration, participating in administrative reconsideration mediation, reaching conciliation agreement in administrative reconsideration, participating in administrative reconsideration hearings, submitting evidence and relevant materials, receiving and accepting legal papers of administrative reconsideration, etc.; and

(e) date of authorization and signature or stamp of the principal.

Where, under exceptional circumstances, a citizen is unable to issue a written power of attorney, he/she may give the authorization orally. In the case of oral authorization by a citizen, the competent Customs administrative reconsideration body shall verify it and keep record thereof.

Where the applicant or any third party concerned cancels or alters the power of attorney, a written report shall be filed with the competent Customs administrative reconsideration body.

Section Two Respondents and Administrative Reconsideration Authorities

Article 16 Where a citizen, juristic person or any other organization refuses to accept a specific administrative act undertaken by Customs, and files an application for administrative reconsideration in accordance with the provisions of these Rules, the Customs which has undertaken the specific administrative act shall be the respondent of the application.

Article 17 Where a citizen, juristic person or any other organization refuses to accept a specific administrative act undertaken by local Customs, the application for administrative reconsideration shall be addressed to the Customs at a higher level which supervises the Customs that has undertaken that specific administrative act.

Where a citizen, juristic person or any other organization refuses to accept a specific administrative act undertaken by the General Administration of Customs, the application for administrative reconsideration shall be addressed to the General Administration of Customs.

Article 18 Where a specific administrative act is undertaken jointly by and in the name of two or more Customs houses, the Customs houses that have undertaken that specific administrative act shall be the joint respondents, and the application for administrative reconsideration shall be addressed to the Customs at a higher level that supervises both of them.

Article 19 Where a specific administrative act is undertaken jointly by and in the name of Customs and another administrative authority, Customs and that administrative authority shall be the joint respondents, and the application for administrative reconsideration shall be addressed to the administrative authority at a higher level that supervises both the Customs and that administrative authority.

Where an applicant refuses to accept a specific administrative act jointly undertaken by the General Administration of Customs and another agency under the State Council, and files an application for administrative reconsideration to either the General Administration of Customs or the other agency under the State Council, a decision thereon shall be made jointly by the General Administration of Customs and the other agency under the State Council.

Article 20 Where, after obtaining the approval of Customs at a higher level, Customs at a lower level undertakes a specific administrative act in its own name in accordance with the provisions of laws, administrative regulations and Customs rules, the Customs at a higher level that has given the approval shall be the respondent.

Where, after approval is obtained from the director general of a regional Customs or the director of the Customs house under the regional Customs authorized thereby, a specific administrative act is undertaken in accordance with the Customs Law as well as the provisions of relevant administrative regulations and Customs rules, the regional Customs shall be the respondent.

Article 21 Where an outpost or internal unit of a Customs house or any other organization of the Customs house undertakes a specific administrative act in its own name without authorization by any law or administrative regulation, that Customs house shall be the respondent, and the application for administrative reconsideration shall be addressed to the Customs at a higher level that supervises that Customs house.

Section Three Time Limits for Applying for Administrative Reconsideration

Article 22 Where a specific administrative act in relation to a citizen, juristic person or any other organization is undertaken by Customs, Customs shall inform the former of his/her/its right to apply for administrative reconsideration, the administrative reconsideration authority to which the application shall be addressed, and the time limit for applying for administrative reconsideration.

Where, after obtaining approval from Customs at a higher level, Customs at a lower level undertakes a specific administrative act in its own name in accordance with the provisions of laws, administrative regulations or Customs rules, it shall notify the citizen, juristic person or organization that the Customs at a higher level which has given the approval shall be the respondent, and inform him/her/it of the corresponding administrative reconsideration authority.

Article 23 Where a citizen, juristic person or any other organization believes that a specific Customs administrative act has infringed his/her/its legitimate rights or interests, he/she/it may, within 60 days as from the day when he/she/it becomes aware of the act, apply for administrative reconsideration.

The time limit for applying for administrative reconsideration prescribed in the preceding paragraph shall be calculated in accordance with the following provisions:

(a) Where the specific administrative act is undertaken in the presence of the citizen, juristic person or organization, the time limit shall start from the date when the act is undertaken;

(b) Where the legal paper concerning the specific administrative act is served directly, the time limit shall start from the date when the addressee signs for the receipt of the legal paper;

(c) Where the legal paper concerning the specific administrative act is served by leaving it at the place of abode of the addressee as prescribed by law, the time limit shall start from the date of service as signed by the process server and the witness on the return receipt of service;

(d) Where the legal paper concerning the specific administrative act is served by postal delivery, the time limit shall start from the date when the addressee signs on the postal delivery receipt for receipt of the legal paper. In the absence of a postal delivery receipt, the time limit shall start from the date when the addressee signs on the service return receipt;

(e) Where the addressee is informed of the specific administrative act by a public announcement as prescribed by law, the time limit shall start from the date of expiry specified in the public announcement;

(f) Where the respondent fails to inform the relevant citizen, juristic person or organization in undertaking the specific administrative act, but notifies the citizen, juristic person or organization after the act has been undertaken, the time limit shall start from the date when the citizen, juristic person or organization receives the notice; or

(g) Where the respondent fails to inform the relevant citizen, juristic person or organization in undertaking the specific administrative act, but evidentiary documents show that the citizen, juristic person or organization is aware of the act, the time limit shall start from the date when the evidentiary documents prove that he/she/it is already aware of the act.

Where the specific administrative act is a continuous one, the time limit shall start from the date when the act is completed.

Where Customs should have served the legal paper regarding a specific administrative act undertaken by it on the relevant citizen, juristic person or organization but fails to do so, the citizen, juristic person or organization shall be regarded as being unaware of the act.

Where the statutory time limit for the applicant to file the application is held up by force majeure or any other valid reason, the time limit shall be suspended until the barrier is removed.

Article 24 Where a citizen, juristic person or any other organization believes that Customs has failed to discharge its statutory responsibilities as prescribed by law, and applies for administrative reconsideration in accordance with items (h) and(p), paragraph 1, Article 9 of these Rules, the time limit for applying for administrative reconsideration shall be calculated in accordance with the following provisions:

(a) Where there is a specified time limit for discharge of responsibilities as prescribed in laws, administrative regulations or Customs rules, the time limit for applying for administrative reconsideration shall start from the date of expiration of the prescribed time limit for discharge of the responsibilities; or

(b) In the absence of any specified time limit for discharge of the responsibilities, the time limit for applying for administrative reconsideration shall start 60 days after Customs receives the application by the citizen, juristic person or organization asking Customs to discharge relevant responsibilities.

Where, in times of emergency, a citizen, juristic person or any other organization requests Customs to discharge its statutory responsibilities of protecting the personal safety or property rights of the former, but Customs fails to do so in time, the time limit for applying for administrative reconsideration shall not be restricted by the provisions of the preceding paragraph.

Article 25 With respect to the duty and/or tax payment disputes as specified in item (g), paragraph 1, Article 9 of these Rules, where an application for administrative reconsideration is filed with Customs after a people’s court rejects the case brought to it directly for an administrative proceeding by the applicant without first applying for any administrative reconsideration, the duration from the date when the applicant brings the case to the court till the date when the legal paper concerning the rejection of the case by the court becomes effective shall not be counted into the time limit for applying for administrative reconsideration, unless Customs has already informed the applicant, in undertaking the relevant specific administrative act, of applying for Customs administrative reconsideration first before bringing any case to a court.

Section Four Lodgment of Applications for Administrative Reconsideration

Article 26 Where an applicant lodges an application for administrative reconsideration in writing, the application may be delivered in person, by mail, by fax or via e-mail.

Customs administrative reconsideration authorities shall, through their notice boards or Internet portal websites, make public their postal addresses, fax numbers, Internet e-mail addresses, etc. for receipt of administrative reconsideration applications, so that the applicant can choose the most convenient one from the different ways of lodging written applications.

Article 27 Where an applicant applies for administrative reconsideration in writing, the application for administrative reconsideration shall bear the following particulars:

(a) the basic information on the applicant, which includes: the name, gender, age, employer, place of abode, ID number and postal code in the case of a citizen; or, in the case of a juristic person or other organization, its name, address, postal code, as well as the name and title of its legal representative or chief person-in-charge;

(b) the name of the respondent;

(c) the request for administrative reconsideration, and the major facts of and reasons for the application for administrative reconsideration;

(d) the signature or stamp of the applicant; and

(e) the date of application for administrative reconsideration.

Article 28 Where an application for administrative reconsideration is made orally by the applicant, the competent Customs administrative reconsideration body shall, in accordance with the provisions of Article 27 of these Rules, make a Written Record of Oral Application for Administrative Reconsideration on the spot, and give it to the applicant for confirmation or read it to the applicant;

Article 29 Under any of the following circumstances, an applicant shall provide corresponding evidentiary materials in lodging the application:

(a) Where the applicant believes that the respondent fails to discharge its statutory responsibilities, evidentiary materials shall be provided to prove that an application has been filed with the respondent asking the latter to discharge its statutory responsibilities;

(b) Where the applicant also applies for administrative indemnification in addition to administrative reconsideration, evidentiary materials shall be provided to prove that damage has been incurred as a result of the infringement by the relevant specific administrative act;

(c) In the case of a circumstance as specified in paragraph 5 of Article 23 of these Rules, evidentiary materials shall be provided to prove the occurrence of the force majeure or any other valid reason; or

(d) any other circumstances prescribed by laws and administrative regulations where the provision of evidentiary materials by the applicant is required.

Article 30 Where an applicant makes a mistake about who should be the respondent in applying for administrative reconsideration, the relevant Customs administrative reconsideration body shall notify the applicant to change the respondent.

The duration during which the applicant changes the respondent shall not be counted into the time limit for handling the administrative reconsideration case.

Article 31 Where the applicant believes that the basis on which a specific Customs administrative act is undertaken is illegal, he/she/it may, in accordance with the provisions of Article 7 of the Administrative Reconsideration Law, file an application for reviewing the provisions for the specific administrative act in addition to applying for administrative reconsideration.

Where, in filing an application for administrative reconsideration of a specific administrative act, the applicant is not aware of the provisions based on which the act is undertaken, he/she/it may file an application for reviewing the provisions before the relevant Customs administrative reconsideration authority issues the decision of administrative reconsideration.

Chapter IV Acceptance of Customs Administrative Reconsideration Applications

Article 32 After a Customs administrative reconsideration authority receives an application for administrative reconsideration, it shall, within five (5) days, examine the application. The application shall be accepted if it satisfies the following requirements:
(a) The applicant of the application has been clearly defined in the application and the respondent has been correctly chosen as prescribed by law;
(b) The applicant has a stake in the specific administrative act in point;
(c) The application contains specific requests and reason(s) for administrative reconsideration;
(d) The application is filed within the prescribed time limit;
(e) The application falls within the scope of administrative reconsideration as prescribed in paragraph 1, Article 9 of these Rules;
(f) The processing of the application falls within the terms of reference of the Customs administrative reconsideration body that has received it; and
(g) Other administrative reconsideration authorities have not accepted the same application, and the relevant people’s court has not accepted the case for an administrative proceeding brought to it by the same subject concerning the same facts.
Where Customs decides to accept an application for administrative reconsideration which meets the requirements in the preceding paragraph, it shall issue and serve a written Notice on Acceptance of Administrative Reconsideration Application and a written Notice on Response to Administrative Reconsideration on the applicant and the respondent respectively. The Notice on Response to Administrative Reconsideration shall bear the date of acceptance, response requirements, and the members of the collegial panel or persons handling the case, and inform the respondent of its right to apply for withdrawal.

Where Customs decides to reject an application which does not meet the requirements in the preceding paragraph, it shall issue and serve a written Decision on Rejection of Administrative Reconsideration Application on the applicant. The Decision on Rejection of Administrative Reconsideration Application shall bear the reasons for and the legal basis of the rejection, and inform the applicant of other ways of asserting his/her/its rights.

Article 33 Where the application materials for administrative reconsideration are incomplete or written in vague language, Customs administrative reconsideration bodies may, within five (5) days upon receipt of the administrative reconsideration application, notify the applicant to add or modify, in writing. Such a notification shall bear the following particulars:

(a) The specific contents to be modified or added in the application;

(b) The specific type of evidentiary materials to be added or modified, and the object to be proved; and

(c) The time limit for making the additions and modifications.

The applicant shall, within ten (10) days upon receipt of the notification, submit the materials added or modified to the competent Customs administrative reconsideration body. The time used to add or modify the application materials shall not be counted into the time limit for handling the administrative reconsideration case.

Where, without any valid reason, the applicant fails to make the additions or modifications, the administrative reconsideration application shall be regarded as abandoned. The applicant is entitled to file another administrative reconsideration application within the time limit prescribed in Article 23 of these Rules.

Article 34 Where an applicant submits an administrative reconsideration application and relevant evidentiary materials by fax or via e-mail, the competent Customs administrative reconsideration body shall not refuse to accept the application just because the original application or materials are not submitted.

After the Customs administrative reconsideration body has accepted the administrative reconsideration application submitted by the applicant by fax or via e-mail, it shall notify the applicant to provide the originals of the relevant application materials within ten (10) days upon receipt of the Notice on Acceptance of Administrative Reconsideration Application.

Article 35 For an administrative reconsideration application that meets the requirements of these Rules and falls within the jurisdiction of administrative reconsideration of the Customs to which the application is addressed, the day on which the Customs’ administrative reconsideration body receives the application shall be regarded as the date of acceptance.

With respect to the date of receipt of the administrative reconsideration application by the Customs administrative reconsideration body, if the application is submitted by the applicant in person, the officer of the Customs administrative reconsideration body who receives the application shall note the date of receipt on the application and ask the submitter to sign for confirmation. If the application is received directly through postal delivery or forwarded by another agency or department, the Customs administrative reconsideration body shall sign for receipt of the application. If the application is submitted by the applicant by fax or via e-mail, the day when the Customs administrative reconsideration body receives the fax or the date of receipt recorded by the Internet e-mail system of the Customs shall be regarded as the date of receipt of the application.

Article 36 An administrative reconsideration application which meets the requirements set out in these Rules but does not fall within the jurisdiction of administrative reconsideration of the Customs to which it is addressed shall, within the time limit for examination, be forwarded to the Customs administrative reconsideration authority whose jurisdiction does cover the application, and the applicant shall be notified of the referral. In the case of an oral notification, record of the relevant contents of the conversation shall be kept and signed or stamped on the spot by the applicant. In the case of a written notification, a Letter of Notification on Administrative Reconsideration shall be issued and served on the applicant.

Article 37 Where, concerning the same matter, an applicant lodges an application for administrative reconsideration with two or more Customs houses which have the jurisdiction to accept the application, the application shall be accepted by the Customs which receives it first. Where the Customs houses receive the application at the same time, it shall be decided, within 10 days upon receipt, through consultation among the Customs houses which receive the application. Where it is impossible to have any consensus reached through consultation, the Customs at a higher level that supervises all of them shall, within ten (10) days, designate one of them to accept the application. The time consumed for consultation or for designating the accepting Customs shall not be counted into the time limit for handling the administrative reconsideration case.

Article 38 Where, without any valid reason, a Customs administrative reconsideration authority refuses to accept an administrative reconsideration application filed by an applicant as prescribed by law, the Customs at a higher level may, in light of the application filed by the applicant or ex officio, urge the Customs administrative reconsideration authority to accept the application. Where the Customs administrative reconsideration authority still refuses to accept the application after being urged, the Customs at a higher level shall order it to accept the application within a specified time limit and issue a Letter of Notification on Ordered Acceptance of Administrative Reconsideration Application. When necessary, the Customs at a higher level may accept the application by itself directly, and issue and serve a Letter of Notification on Direct Acceptance of Administrative Reconsideration Application on the applicant and the original Customs administrative reconsideration authority. Where, upon examination, the Customs at a higher level believes that the decision by the Customs administrative reconsideration authority to reject the application is in line with the provisions of these Rules, the former shall make explanations to the applicant.

Article 39 The following applications shall not be regarded as applications for administrative reconsideration, and the relevant Customs administrative reconsideration authorities shall either make a reply or refer the cases to the competent authority for disposal and inform the applicant:

(a) The purpose of the application is to report or complain about the behavior of a Customs officer in violation of law or discipline, or to raise an objection to the attitude or working style of a Customs officer;

(b) The purpose of the application is to raise an objection to Customs policies, or to the procedures, ways or processes of Customs operations;

(c) The purpose of the application is to raise an objection to the efficiency of Customs work;

(d) The applicant has no objection to the facts found concerning the relevant administrative penalty, the laws applied and the penalty decision made, but, due to his/her/its economic difficulties, the penalty is unbearable, and the applicant has filed the application to request a lesser punishment;

(e) The application does not involve any specific Customs administrative act, and the purpose of the application is just to raise an objection to Customs rules or other regulatory papers; or

(f) The purpose of the application is to ask for explanations regarding a law, an administrative regulation, or a rule.

Article 40 During administrative reconsideration, the execution of the specific Customs administrative act in point shall not be stopped unless conditions are met for any of the circumstances listed in Article 21 of the Administrative Reconsideration Law. Where it is decided to stop the execution of the act, a written Decision on Termination of Execution of Specific Administrative Act shall be issued and served on the applicant, the respondent and relevant third parties.

Article 41 Under any of the following circumstances, in handling two or more cases, a Customs administrative reconsideration authority may decide to consolidate those cases, and take the date of acceptance of the later administrative reconsideration application as the formal date of acceptance:

(a) Two or more applicants apply to the Customs administrative reconsideration authority for administrative reconsideration concerning the same specific Customs administrative act respectively; or

(b) Concerning several specific administrative acts of the same Customs that are of the same type or connected to one another, the same applicant files several administrative reconsideration applications with the Customs administrative reconsideration authority.

Chapter V Customs Administrative Reconsideration Case Handling and Decision

Section One Administrative Reconsideration Reply

Article 42 A Customs administrative reconsideration body shall, within seven (7) days upon acceptance of an administrative reconsideration application, send a copy of the application or a photocopy of the Written Record of Oral Application for Administrative Reconsideration, and a copy of the evidence and relevant materials submitted by the applicant to the respondent.

Article 43 The respondent shall, within ten (10) days upon receipt of the application copy or the photocopy of the Written Record of Oral Application for Administrative Reconsideration, submit to the Customs administrative reconsideration body a written Administrative Reconsideration Reply, the evidence and basis according to which the relevant specific administrative act is made as well as other relevant materials.

The Administrative Reconsideration Reply shall bear the following particulars:

(a) The name and address of the respondent, and the name and title of the legal representative of the respondent;

(b) The facts, evidence, grounds and legal basis based on which the specific administrative act is undertaken by the respondent;

(c) The item-by-item defense, supported by evidence as necessary, in response to the requests, facts and grounds specified in the administrative reconsideration application filed by the applicant;

(d) The reply suggesting to affirm, change or revoke the relevant specific administrative act, or confirming the illegality of the act, or suggesting to reject the administrative reconsideration application, or suggesting to conduct administrative reconsideration mediation; and

(e) The date of reply.

The stamp of the respondent shall be affixed to the Administrative Reconsideration Reply.

The relevant evidence, basis and other pertinent materials submitted by the respondent shall be bound into volumes in accordance with the relevant provisions.

Article 44 The Customs administrative reconsideration body shall, within seven (7) days as from the day when it receives the Administrative Reconsideration Reply submitted by the respondent, send a copy of the Administrative Reconsideration Reply to the applicant.

Article 45 The legal affairs department of the respondent shall be responsible for the specific matters of reply concerning administrative reconsideration cases.

Where a citizen, juristic person or any other organization refuses to accept a specific administrative act undertaken by the General Administration of Customs and applies to the latter for administrative reconsideration, the department or body that has undertaken the specific matters in relation to the act shall be responsible for submitting a written reply, as well as the evidence, basis and other pertinent materials based on which the act has been undertaken.

Section Two Administrative Reconsideration Case Handling

Article 46 Customs administrative reconsideration cases shall be handled by applying the collegial system. The number of members of the collegial panel shall be an odd number of not less than 3. The panel shall be composed of administrative reconsideration personnel designated by the person-in-charge of the Customs administrative reconsideration body or other persons in possession of professional knowledge recruited or specially invited by the Customs administrative reconsideration body to sit on the panel.

Staff working for the respondent shall not sit on the panel. Where a citizen, juristic person or any other organization refuses to accept a specific administrative act undertaken by the General Administration of Customs and applies to the latter for administrative reconsideration, staff of the department of the General Administration of Customs that has undertaken the act shall not sit on the panel.

A Customs administrative reconsideration case whose facts are clear, circumstances are simple and not so disputable, may not apply the collegial system, but at least two administrative reconsideration staff shall participate in the handling of the case.

Article 47 The person-in-charge of the Customs administrative reconsideration body shall designate an administrative reconsideration staff to serve as the chair of the panel, who shall undertake the specific task of reviewing the facts of the administrative reconsideration case and assume major responsibilities for the authenticity of the facts found concerning the case and the correctness of application of law.

Members of the collegial panel shall, in light of the facts ascertained through review and in accordance with the provisions of relevant laws, administrative regulations and Customs rules, put forward collegial opinions and be responsible for the correctness of such opinions.

Article 48 Where the applicant, the respondent or a third party concerned believes that a member of the collegial panel or a person handling the case has a stake in the case or is involved in any other relationship which might affect justice in the handling of the administrative reconsideration case, he/she/it may apply for the withdrawal of that member of the collegial panel or the person handling the case, and state the reasons therefor at the same time.

Where a member of the collegial panel or a person handling the case believes that he/she has a stake in the case or is involved in any other pertinent relationship, he/she shall apply for withdrawal on his/her own initiative. The person-in-charge of the Customs administrative reconsideration body may order the member of the collegial panel or the person handling the case to withdraw.

The withdrawal of administrative reconsideration personnel shall be decided by the person-in-charge of the Customs administrative reconsideration body. The withdrawal of the person-in-charge of the Customs administrative reconsideration body shall be decided by the person-in-charge of the Customs administrative reconsideration authority.

Article 49 In handling an administrative reconsideration case, the Customs administrative reconsideration body shall make inquiries with the relevant organizations or personnel and listen to the opinions of the applicant, the respondent and the third parties concerned. When deemed necessary, the Customs administrative reconsideration body may conduct on-site investigations to verify the evidence. Cases whose facts are clear, circumstances are simple and not so disputable may be handled by reviewing the written materials only.

Article 50 In conducting investigations and obtaining evidence from the relevant organizations and personnel, the Customs administrative reconsideration body may consult, make photocopies of and take relevant files and materials, and put questions to the relevant persons.

In conducting investigations and taking evidence, at least two (2) administrative reconsideration staff shall be present and shall produce their certificates of investigation to the relevant persons on their own initiative. The organizations and persons under investigation shall offer assistance for the administrative reconsideration personnel to carry out their work, and shall not refuse or obstruct their work.

A written record shall be made in conducting the investigations and inquiries, which shall be signed by both the persons under investigation and the administrative reconsideration personnel for confirmation.

Article 51 Where special matters are involved during administrative reconsideration, which calls for expert evaluation, the applicant or any third party concerned may entrust an expert evaluation institution on his/her own initiative to conduct the evaluation, or apply to the administrative reconsideration body so that the latter may entrust an expert evaluation institution to conduct the evaluation. The expenses incurred by the evaluation shall be borne by the applicant or the third party concerned. The time spent on evaluation shall not be counted into the time limit for handling the administrative reconsideration case.

When deemed necessary, the Customs administrative reconsideration body may, on its own initiative, entrust an expert evaluation institution to do the evaluation.

In the case of entrusted evaluation, the expert evaluation institution shall be one that is accredited by the national accreditation authority.

Article 52 Where on-site inspection is required, the time spent on the inspection shall not be counted into the time limit for handling the administrative reconsideration case.

Article 53 The applicant and the third parties concerned may consult the written reply given by the respondent, as well as the evidence, basis and other pertinent materials concerning the specific administrative act that are submitted by the respondent. Unless a State secret, commercial secret, a Customs work secret or personal privacy is involved, the Customs administrative reconsideration authority shall not refuse such consultation and shall provide necessary assistance for the applicant and the third parties concerned to consult the relevant materials.

A Customs administrative reconsideration authority with the necessary conditions shall set up a reception room dedicated to administrative reconsideration or a file inquiry room equipped with necessary monitoring equipment.

Article 54 In consulting the relevant materials, the applicant and the third parties concerned shall observe the following provisions:

(a) The applicant or any third party concerned makes a request to the Customs administrative reconsideration body for consulting the materials;

(b) The Customs administrative reconsideration body informs the applicant or the third party in advance after setting the time of consultation;

(c) In consulting the materials, the applicant and the third party shall produce their ID card;

(d) Customs administrative reconsideration personnel shall be present when the consultation is conducted;

(e) The applicant and the third party may note down the contents of the materials so consulted; and
(f) The applicant and the third party shall not erase, damage, dismantle, change, take away the materials so consulted nor add anything to them.
Article 55 Under any of the following circumstances which occur during administrative reconsideration and affect the handling of an administrative reconsideration case, the administrative reconsideration shall be suspended, and the Customs administrative reconsideration body shall issue a written Decision of Suspension of Administrative Reconsideration, and serve it on the applicant, the respondent and the third parties concerned:

(a) The applicant, who is a natural person, has died, and his/her close relatives have not decided whether to participate in the administrative reconsideration or not;　　

(b) The applicant, who is a natural person, has lost the capacity to participate in the administrative reconsideration, and his/her legal representative to participate in the administrative reconsideration has not been determined yet;　　

(c) The applicant, which is a juristic person or any other organization, has been terminated and the successor to its rights and obligations has not been determined yet;　　

(d) The applicant, who is a natural person, is missing or is declared as missing;　　

(e) The applicant and the respondent are unable to participate in the administrative reconsideration due to force majeure;　　

(f) The case involves an issue of application of law, and needs interpretation or confirmation by competent authorities;　　

(g) The handling of the case has to be based on the result of handling of another case, which has not been concluded yet;　　

(h) The application for reviewing the relevant provisions filed by the applicant in accordance with Article 31 of these Rules is being handled by Customs or another administrative authority having jurisdiction over the matter as prescribed by law; or

(i) Any other circumstances where the suspension of administrative reconsideration is required.　　

Where the factors requiring the suspension of administrative reconsideration are eliminated, the Customs administrative reconsideration body shall timely resume the handling of the administrative reconsideration case, issue a written Notice on Resumption of Administrative Reconsideration and serve it on the applicant, the respondent and the third parties concerned.

Section Three Administrative Reconsideration Hearing

Article 56 Under any of the following circumstances, a Customs administrative reconsideration body may handle the case by holding a hearing:

(a) The applicant makes a request for hearing;

(b) The applicant and the respondent have a strong dispute over the facts;

(c) The applicant has a different opinion concerning the legal basis applied by the specific administrative act in point;

(d) The case is a major one, the circumstances are complicated, or the value of the object in dispute is large; or

(e) Any other circumstances where the Customs administrative reconsideration body deems it necessary to hold a hearing.

Article 57 Where a Customs administrative reconsideration body decides to hold a hearing, it shall issue a written Notice on Administrative Reconsideration Hearing to notify the applicant, the respondent and the relevant third parties in advance of matters such as the time, location and specific requirements of the hearing.

The absence of any third party concerned does not affect the conducting of the hearing.

Article 58 A hearing may be held at the place where the Customs administrative reconsideration body is located, or at the place where the respondent or the applicant is located.

Article 59 An administrative reconsideration hearing shall be held in public unless any State secret, commercial secret, Customs work secret or personal privacy is involved.

For an administrative reconsideration hearing held in public, if the number of audience attending the hearing needs to be restricted due to reasons like the limited size of the site of hearing, the Customs administrative reconsideration body shall make an explanation thereon.

For an open hearing of an administrative reconsideration case that is of great concern to the public, has tremendous social influence, or is beneficial to raise the popular awareness of law, the Customs administrative reconsideration body may work out a plan to organize the public to observe the hearing process, or invite the personnel of the relevant legislative, judicial, supervisory and auditing agencies, media or other pertinent organizations to observe the hearing process.

Article 60 The number of administrative reconsideration hearing personnel shall be an odd number of not less than 3, whose name list shall be determined by the person-in-charge of the Customs administrative reconsideration body and one of whom shall be designated as the chair of the hearing. For the purpose of the hearing, a person other than the above-mentioned personnel may be designated as the reporter of the hearing.

Article 61 An administrative reconsideration hearing shall observe the following procedure:

(a) The chair declares open the hearing, confirm the identity of the participants, and inform the participants of their rights and obligations;

(b) The chair asks the participants whether to apply for the withdrawal of the hearing personnel or the hearing reporter; if the answer is “Yes”, the provisions of Article 48 of these Rules shall be followed;

(c) The applicant reads the application for administrative reconsideration and expounds the major reasons therefor;

(d) The respondent makes an oral defense in response to the administrative reconsideration application, expounds the facts, grounds and legal basis according to which the specific administrative act in point has been undertaken, and produces evidence;

(e) The third parties concerned may air their opinions;

(f) The applicant and the third parties concerned may challenge the evidence produced by the respondent or refute the respondent with contrary evidence, and the respondent may also challenge the contrary evidence produced by the applicant or any third party concerned and refute the applicant and the third parties with assertive evidence;

(g) Where a witness is asked to testify during a hearing, approval shall be obtained from the Customs administrative reconsideration body in advance and the basic information on the witness, such as his/her identify, shall be provided beforehand;

(h) The chair of the hearing and other hearing personnel ask questions;

(i) Evidence to which the applicant, the respondent and the third parties concerned have no objection and facts that have been proven shall be ascertained by the chair on the spot. Facts and evidence which involve disagreement and have a bearing on the outcome of handling of the case shall be ascertained by the chair on the spot or after discussions by the collegial panel;

(j) The applicant, the respondent and the third parties concerned may conduct debates over the facts of the case, the evidence, the application of law, etc.;

(k) The applicant, the respondent and the third parties concerned make their closing statements; and

(l) The applicant, the respondent and the third parties concerned confirm the contents of the hearing transcript, and affix their signatures or stamps to the transcript. Where there is disagreement regarding the contents of the hearing transcript, corrections may be made on the spot with the signatures or stamps affixed.

Administrative reconsideration hearing transcripts and facts ascertained by a hearing shall be the basis on which the Customs administrative reconsideration authority makes the administrative reconsideration decision.

Article 62 Where an administrative reconsideration participant is unable to present evidence on the spot when a hearing is being held, it’s up to the chair to, in light of the circumstances, determine a time limit for the evidence to be presented later and for further investigation and evidence challenging to be conducted, or decide to have another hearing. Where it is impossible to challenge the evidence produced by an administrative reconsideration participant on the spot, it’s up to the chair to declare on the spot that investigation and evidence challenging be conducted afterwards or another hearing be held.

Evidence produced by an administrative reconsideration participant after a hearing that fails to go through the procedure of challenge or fails to be recognized by the Customs administrative reconsideration body after further investigation shall not be the evidence basis on which an administrative reconsideration decision is based.

Section Four Incidental Review of Abstract Administrative Acts under Administrative Reconsideration

Article 63 Where an applicant, in accordance with Article 31 of these Rules, files an application for reviewing the relevant provisions, which are within the jurisdiction of the Customs administrative reconsideration authority, the Customs administrative reconsideration authority shall, within 30 days, take actions by observing the following procedure:

(a) determine in accordance with law whether the provisions run counter to any law, administrative regulation or rule;

(b) confirm in accordance with law whether the provisions can be the basis on which the respondent undertakes the specific administrative act in point; and

(c) notify the applicant in writing of the result of review of the provisions.

The Customs administrative reconsideration authority shall issue a written Notice on Review of Abstract Administrative Acts, and serve it on the applicant and the respondent.

Article 64 Where an applicant files an application for reviewing the relevant provisions that are not within the jurisdiction of the Customs administrative reconsideration authority, the Customs administrative reconsideration authority shall, within seven (7) days and in light of the following procedure, refer the application to the Customs at a higher level or another administrative authority that has the jurisdiction to conduct the review in accordance with law:

(a) Where the application is referred to the Customs at a higher level that has the jurisdiction, the information on the administrative reconsideration and on the execution and application of the relevant provisions shall be reported to the latter; or

(b) Where the application is referred to another administrative authority that has the jurisdiction, information on the administrative reconsideration shall be supplied and request for confirmation of the legality of the provisions be made in the letter of referral.

Article 65 The Customs at a higher level that has the jurisdiction shall, within 60 days, handle the application by observing the following procedure:

(a) confirm in accordance with law whether the provisions are legal and effective;

(b)confirm in accordance with law whether the provisions can be the basis on which the respondent undertakes the specific administrative act in point; and

(c) issue a written Notice on Review of Abstract Administrative Acts, and serve it on the Customs administrative reconsideration authority, the applicant and the respondent.

Article 66 Where, in reviewing the specific administrative act undertaken by the respondent, the Customs administrative reconsideration authority believes that the relevant provisions based on which the act has been undertaken need to be reviewed, it shall handle the procedure in accordance with the provisions of Articles 63, 64 and 65 of these Rules.

Section Five Administrative Reconsideration Decisions

Article 67 An administrative reconsideration decision shall be made after the person-in-charge of the Customs administrative reconsideration authority has reviewed and approved the concluding opinions put forward by the Customs administrative reconsideration body concerning the case.

Article 68 The Customs administrative reconsideration authority shall make an administrative reconsideration decision within 60 days as from the date of acceptance of an application. However, under any of the following circumstances, the time limit may be extended by 30 days upon approval by the person-in-charge of the Customs administrative reconsideration authority:

(a) The administrative reconsideration case is a major one, the circumstances of the case are complicated and it is hard to make a decision;

(b) It is decided that an administrative reconsideration hearing will be held;

(c) The applicant has agreed to extend the time limit;

(d) A third party is a participant in the administrative reconsideration; or

(e) The applicant or a third party concerned has presented new facts or evidence, which require further investigation.

In extending the time limit for reconsideration, the Customs administrative reconsideration authority shall issue a Notice on Extension of Time Limit for Review of Administrative Reconsideration, and serve it on the applicant, the respondent and the third parties concerned.

Article 69 Where the facts ascertained concerning a specific administrative act are clear, the evidence is irrefutable, the basis of application is correct, the procedure is legal, and the contents are appropriate, the Customs administrative reconsideration authority shall make a decision of affirming the act.

Article 70 Where the respondent fails to discharge its statutory responsibilities, the Customs administrative reconsideration authority shall make a decision of having it discharge its statutory responsibilities within a specified time limit.

Article 71 Under any of the following circumstances, the Customs administrative reconsideration authority shall make a decision of revoking or changing the specific administrative act in point or confirming the illegality of the act:

(a) Major facts are unclear, and evidence is inadequate;

(b) The legal basis applied is incorrect;

(c) The act is undertaken in violation of the statutory procedure;

(d) The power is overridden or abused; or

(e) It is obvious that the specific administrative act is inappropriate.

Article 72 Where a Customs administrative reconsideration authority makes a decision of revoking a specific administrative act or confirming the illegality of the act, it may order the respondent to undertake the specific administrative act anew within a specified time period.

The respondent shall undertake the specific administrative act anew within the time limit prescribed in relevant laws, administrative regulations or Customs rules. Where a time limit isn’t specified in those laws, administrative regulations or Customs rules, the time limit for undertaking the specific administrative act anew shall be 60 days.　　

In case a citizen, juristic person or any other organization refuses to accept the specific administrative act undertaken anew by the respondent, he/she/it may apply for administrative reconsideration or initiate an administrative proceeding in accordance with law.

Article 73 Where the respondent fails to make a written reply or present the evidence for and the basis of the original specific administrative act or other relevant materials in accordance with Article 43 of these Rules, the act shall be regarded as not supported by evidence and any basis, and the Customs administrative reconsideration authority shall make a decision of revoking the specific administrative act.

Article 74 Under any of the following circumstances, the Customs administrative reconsideration authority may make a decision of changing the specific administrative act:　　

(a) The facts found are clear, the evidence is irrefutable, the procedure is legal, but the act is obviously inappropriate or the basis applied is incorrect; or　　

(b) The facts found are unclear, the evidence is inadequate, but after fact-finding by the Customs administrative reconsideration authority in handling the case, the facts ascertained are clear and the evidence is irrefutable.

Article 75 Within the scope of administrative reconsideration requested by the applicant, the Customs administrative reconsideration authority shall not make an administrative reconsideration decision that is even more unfavorable against the applicant.

Article 76 Where a Customs administrative reconsideration authority orders the respondent to undertake a specific administrative act anew in accordance with Article 72 of these Rules, the respondent shall not undertake any specific administrative act that is even more unfavorable against the applicant unless any of the following circumstances occurs:

(a) If the specific administrative act that is even more unfavorable against the applicant fails to be undertaken, national interests, public interests of the society or the legitimate rights and interests of another person will be undermined;

(b) The legal basis based on which the original specific administrative act has been undertaken is incorrect, and to apply the correct legal basis requires a specific administrative act that is even more unfavorable against the applicant be undertaken in accordance with law;

(c) The respondent has ascertained new facts, in accordance with which and the mandatory provisions of the relevant laws, administrative regulations and Customs rules, a specific administrative act that is even more unfavorable against the applicant needs to be undertaken; or

(d) Any other circumstances where a specific administrative act that is even more unfavorable against the applicant should be undertaken in accordance with the provisions of laws, administrative regulations or Customs rules.

Article 77 In making an administrative reconsideration decision, a Customs administrative reconsideration authority shall issue a written Administrative Reconsideration Decision, and serve it on the applicant, the respondent and the third parties concerned.

An Administrative Reconsideration Decision shall bear the following particulars:

(a) the name, gender, age, occupation and residential address of the applicant, or in case the applicant is a juristic person or other organization, its name and address, as well as the name and title of its legal representative or chief person-in-charge;

(b) the name, gender, age, occupation and residential address of the third parties concerned, or in case any third party is a juristic person or other organization, its name and address, as well as the name and title of its legal representative or chief person-in-charge;

(c) the name and address of the respondent, and the name of its legal representative;

(d) the requests, facts and reasons specified in the applicant’s application for reconsideration;

(e) the facts, reasons, evidence and basis contained in the reply by the respondent;

(f) the facts ascertained through administrative reconsideration, and relevant evidence;

(g) the specific reasons and legal basis on which the administrative reconsideration decision is made;

(h) the specific contents of the administrative reconsideration decision;

(i) the time limit for bringing a lawsuit to a people’s court in case of disagreement with the administrative reconsideration decision, and the court having the jurisdiction; and

(j) the date on which the administrative reconsideration decision is made.

An Administrative Reconsideration Decision shall be stamped with the seal of the Customs administrative reconsideration authority.

Once served, an Administrative Reconsideration Decision shall become effective immediately.

Where an Administrative Reconsideration Decision is served directly, the administrative reconsideration personnel shall make explanations to the applicant, the respondent and the relevant third parties regarding the facts ascertained through administrative reconsideration, the evidence, and the grounds and basis on which the administrative reconsideration decision is made. Where the applicant, the respondent or a third party disagrees with the Administrative Reconsideration Decision, in addition to informing him/her/it of the right to bring a lawsuit to a people’s court, the administrative reconsideration personnel shall also answer questions from him/her/it concerning the disagreement. Where the Administrative Reconsideration Decision is served by other means, and the applicant, the respondent or a third party concerned raises different opinions concerning the contents of the Administrative Reconsideration Decision to the Customs administrative reconsideration body, the administrative reconsideration personnel shall make explanations to the applicant, the respondent or the third party.

With the consent of the applicant and the third parties concerned, Customs administrative reconsideration authorities may publicize relevant legal instruments of administrative reconsideration that have taken effect through publications, Customs portal websites, Customs notice boards, etc..

Article 78 Where, after an Administrative Reconsideration Decision is served on the applicant, the respondent and the third parties concerned, the Customs administrative reconsideration authority finds that some contents need to be added or modified but do not affect the substantive part of the decision, it shall issue a Notice on Additions and Modifications for Administrative Reconsideration Decision, and serve it on the applicant, the respondent and the relevant third parties.

Article 79 Under any of the following circumstances, a Customs administrative reconsideration authority shall make a decision of rejecting the administrative reconsideration application:　　

(a) The applicant has filed the application for administrative reconsideration in the belief that Customs fails to discharge its statutory responsibilities, but the Customs administrative reconsideration authority finds, after accepting the application, that the respondent is not mandated with the statutory responsibilities in point or the respondent has performed its statutory responsibilities before the Customs administrative reconsideration authority accepts the application; or　　

(b) After accepting the application for administrative reconsideration, the Customs administrative reconsideration authority finds the application does not conform to the conditions required for acceptance.　　

Where the Customs at a higher level that supervises the Customs administrative reconsideration authority believes that the reason based on which the administrative reconsideration authority rejects the application is untenable, it shall order the latter to resume the handling of the case.

Article 80 Where an applicant voluntarily withdraws an administrative reconsideration application before an administrative reconsideration decision is made, the application may be withdrawn upon approval by the Customs administrative reconsideration body.

Where an applicant has withdrawn an administrative reconsideration application, he/she/it shall not apply again based on the same facts and reasons for administrative reconsideration unless the applicant can prove that withdrawing the application was against his/her/its real intention.　　

Article 81 Where the respondent changes the original specific administrative act during administrative reconsideration but the applicant has not withdrawn the administrative reconsideration application in accordance with law, the handling of the administrative reconsideration case shall not be affected.

Article 82 Under any of the circumstances that occur during administrative reconsideration, the administrative reconsideration shall be terminated: 　　

(a) The applicant requests to withdraw the administrative reconsideration application, and the Customs administrative reconsideration body gives its approval;　　

(b) The applicant, who is a natural person, has died and doesn’t have any close relative or his/her close relatives have abandoned the right to administrative reconsideration;　　

(c) The applicant, which is a juristic person or any other organization, has terminated, and the successor to its rights and obligations has abandoned the right to administrative reconsideration;　　

(d) The applicant and the respondent have reached conciliation, which is approved by the Customs administrative reconsideration body;　　

(e) After the applicant has applied for administrative reconsideration due to objection to an administrative mandatory measure imposed by Customs on him/her by restricting his/her personal freedom, the administrative mandatory measure of restricting personal freedom is changed into criminal detention because the applicant is suspected of a crime for the same breach of law, or after the applicant has applied for administrative reconsideration due to objection to an administrative mandatory measure imposed by Customs on him/her by withholding his/her property, the administrative mandatory measure of property withholding is changed into property attachment because the applicant is suspected of a crime for the same breach of law;

(f) Administrative reconsideration is suspended in accordance with the provisions of items (a), (b) or (c), paragraph 1, Article 55 of these Rules, and the factors causing the suspension of the administrative reconsideration are still not eliminated after 60 days of suspension; or

(g) The applicant fails to, after submitting the application for administrative reconsideration by fax or via e-mail, present the original of the relevant materials within the prescribed time limit.

When administrative reconsideration is terminated, the Customs administrative reconsideration authority shall issue a Decision on Termination of Administrative Reconsideration, and serve it on the applicant, the respondent and the third parties concerned.

Section Six Administrative Reconsideration Conciliation and Mediation

Article 83 Where a citizen, juristic person or any other organization applies for administrative reconsideration due to objection to a specific administrative act which Customs has undertaken by exercising the discretion accorded by laws, administrative regulations or Customs rules, the applicant and the respondent may reach conciliation on a voluntary and legal basis before the Customs administrative reconsideration authority makes a decision on administrative reconsideration.

Article 84 Where the applicant and the respondent reach conciliation, they shall submit a written deed of conciliation to the Customs administrative reconsideration body. The deed of conciliation shall bear the requests for administrative reconsideration, the facts, the reasons and the outcome of conciliation reached between the two parties, and be signed or stamped by the applicant and the respondent.

Article 85 The Customs administrative reconsideration body shall examine the deed of conciliation submitted by the applicant and the respondent. Where conciliation is the real intention of the applicant and the respondent, and the contents of the deed of conciliation are not against the mandatory provisions of any law, administrative regulation or Customs rule and do not jeopardize any national interests, public interests of the society or legitimate rights and interests of any other person, approval shall be given for conciliation and the administrative reconsideration shall be terminated.

Where conciliation is approved and administrative reconsideration terminated, the contents of the deed of conciliation shall be written into the Decision on Termination of Administrative Reconsideration.

Article 86 Where conciliation is approved by the Customs administrative reconsideration authority, the applicant and the respondent shall honor the deed of conciliation.

Article 87 Where conciliation is approved by the Customs administrative reconsideration authority and administrative reconsideration terminated, the application for administrative reconsideration filed again by the applicant for the same subject and same reasons shall not be accepted unless the applicant supplies evidence proving that the conciliation is against the voluntary principle or any content of the conciliation is against the mandatory provisions of a law, administrative regulation or Customs rule.

Article 88 Under any of the following circumstances, the Customs administrative reconsideration authority may conduct mediation on a voluntary and legal basis:

(a) The citizen, juristic person or other organization has applied for administrative reconsideration due to objection to a specific administrative act which Customs has undertaken by exercising the discretion accorded by laws, administrative regulations or Customs rules; or

(b) a dispute over administrative indemnification, inspection indemnification or administrative compensation is involved.

Article 89 The mediation chaired by a Customs administrative authority shall conform to the following requirements:

(a) The mediation shall be conducted on the basis of the ascertained facts of the case;

(b) the Customs administrative reconsideration authority shall show full respect for the will of the applicant and the respondent;

(c) The mediation shall be organized under the principles of impartiality and reasonability;

(d) The outcome of the mediation shall be in line with the provisions of relevant laws, administrative regulations and Customs rules, and shall not go against the spirit and principles of law; and

(e) The outcome of the mediation shall not jeopardize any national interests, public interests of the society or the legitimate rights and interests of any other persons.

Article 90 While chairing mediation, a Customs administrative reconsideration authority shall observe the following procedure:

(a) ask the intention of the applicant and the respondent about whether they agree to have mediation;

(b) start mediation with the consent of the applicant and the respondent;

(c) listen to the opinions of the applicant and the respondent;

(d) come up with a mediation solution; and

(e) reach mediation agreement.

Where, during the mediation, the applicant or the respondent has clearly stated his/her/its intention of not having any mediation, the mediation shall be terminated. If, after the termination of the mediation, the applicant and the respondent request the Customs administrative reconsideration authority to conduct mediation again, approval shall be given.

Article 91 Where the applicant and the respondent reach agreement after mediation, the Customs administrative reconsideration authority shall prepare an Administrative Reconsideration Mediation Agreement, which shall bear the following particulars:

(a) the name, gender, age, occupation and residential address of the applicant, or in case the applicant is a juristic person or other organization, its name and address, as well as the name and title of its legal representative or chief person-in-charge;

(b) the name and address of the respondent, and the name of its legal representative;

(c) the requests, facts and reasons specified in the applicant’s application for administrative reconsideration;

(d) the facts, reasons, evidence and basis specified in the reply by the respondent;

(e) the facts ascertained through administrative reconsideration, and relevant evidence;

(f) an overall introduction on the mediation conducted;

(g) the outcome of the mediation;

(h) the obligations of the applicant and the respondent to execute the mediation agreement; and

(i) the date.

An Administrative Reconsideration Mediation Agreement shall be stamped with the seal of the Customs administrative reconsideration authority, and shall become legally binding once signed or stamped by the applicant and the respondent.

Article 92 Where the applicant and the respondent submit a written deed of conciliation and ask the Customs administrative reconsideration authority to issue an Administrative Reconsideration Mediation Agreement in light of the contents contained in the deed of conciliation, the administrative reconsideration authority shall review the deed of conciliation. Where the deed of conciliation reached by and between the applicant and the respondent complies with items (d) and (e), Article 89 of these Rules, the Customs administrative reconsideration authority may, in light of the contents contained in the deed of conciliation, prepare an Administrative Reconsideration Mediation Agreement in accordance with the provisions of Article 91 of these Rules.

Article 93 Where agreement fails to be reached after mediation, or either party reneges before the Administrative Reconsideration Mediation Agreement takes effect, the Customs administrative reconsideration authority shall make an administrative reconsideration decision timely.

Section Seven Execution of Administrative Reconsideration Decisions

Article 94 Where the applicant believes that the respondent has not executed or has delayed executing the Administrative Reconsideration Decision or the Administrative Reconsideration Mediation Agreement without any valid reason, he/she/it may file an application with the Customs administrative reconsideration authority for ordering the respondent to execute it.

Where the Customs administrative reconsideration authority finds that the respondent has not executed or has delayed executing the Administrative Reconsideration Decision or the Administrative Reconsideration Mediation Agreement without any valid reason, it shall order the respondent to execute it within a specified time limit, and issue a written Notice on Ordered Execution of Administrative Reconsideration Decision Within a Specified Time Limit and serve it on the respondent.

Article 95 Where, within the statutory time limit, the applicant fails to initiate an administrative proceeding or execute the Customs Administrative Reconsideration Decision, the case shall be handled in accordance with the following provisions:

(a) Where the Customs Administrative Reconsideration Decision has affirmed the specific administrative act in point, the Customs that has undertaken the act shall enforce the decision in accordance with law, or file an application with a people’s court for enforcement; or

(b) Where the Customs Administrative Reconsideration Decision has changed the original specific administrative act, the Customs administrative reconsideration authority shall enforce the decision in accordance with law, or file an application with a people’s court for enforcement. The Customs administrative reconsideration authority may designate the Customs that has undertaken the act to enforce the decision in accordance with law. The Customs so designated shall timely report to the Customs administrative reconsideration authority regarding the execution of the decision.

Article 96 Where an applicant fails to execute an Administrative Reconsideration Mediation Agreement, the Customs that has undertaken the act shall enforce it in accordance with law, or file an application with a people’s court for enforcement.

Chapter VI Guidance for and Supervision over Customs Administrative Reconsideration

Article 97 Customs administrative reconsideration authorities shall enhance guidance for the handling of administrative reconsideration.

Customs administrative reconsideration bodies shall, in accordance with their responsibilities and terms of reference, conduct supervision over and offer guidance for the handling of administrative reconsideration.

Article 98 Customs at a higher level shall enhance supervision over the discharge of responsibilities by Customs at a lower level in the handling of administrative reconsideration, and shall inspect the work of administrative reconsideration of Customs at a lower level through routine checks, random checks, etc. and give feedback on the inspection in a timely fashion.

Where a Customs house finds a mistake in an administrative reconsideration decision made by itself or the Customs at a lower level, correction shall be made.

Article 99 Where, during administrative reconsideration, a Customs administrative reconsideration authority finds the specific administrative act in point undertaken by the respondent is illegal or follow-up actions need to be taken, it may issue a Letter of Opinions on Administrative Reconsideration to set forth its opinions regarding the correction of the respondent’s law enforcement behavior and ways to improve its law enforcement.

The respondent shall, within 60 days upon receipt of the Letter of Opinions on Administrative Reconsideration, submit to the competent Customs administrative reconsideration body a report on corrections made in relation to the illegal administrative act or follow-up actions taken.

Article 100 Customs administrative reconsideration bodies may make recommendations to the relevant authorities on improvement of legislation regarding common problems arising from the implementation of laws, administrative regulations and rules, which are identified during administrative reconsideration.

A Customs administrative reconsideration body may, when identifying any common problem existing in Customs law enforcement during administrative reconsideration, prepare an Administrative Reconsideration Recommendation Letter to make suggestions to the relevant departments within its own Customs for improvement of law enforcement. For problems that may have tremendous influence on the administrative decision-making of its own Customs, the Customs administrative reconsideration body shall also submit the Administrative Reconsideration Recommendation Letter to the chief executive of the Customs. For problems that are within the jurisdiction of the Customs at a higher level, the competent Customs administrative reconsideration authority may make recommendations to the Customs at a higher level for institutional and law enforcement improvement.

Article 101 For administrative reconsideration cases handled by Customs administrative reconsideration authorities at all levels, a report as well as relevant legal papers shall be submitted to the administrative reconsideration body of the General Administration of Customs for record if a Customs administrative authority has terminated administrative reconsideration after the applicant and the respondent reach a deed of conciliation, or the Customs administrative reconsideration authority has prepared an Administrative Reconsideration Mediation Agreement after the applicant and the respondent reach agreement through its mediation.

Article 102 In handling an administrative reconsideration case, a Customs administrative reconsideration body shall timely put the information contained in the legal papers issued in relation to the case into the administrative reconsideration information system of Customs for record keeping.

Article 103 A Customs administrative reconsideration body shall submit biannually an analysis report on administrative reconsideration to its own Customs and the Customs administrative reconsideration body at a higher level.

Article 104 The administrative reconsideration body of the General Administration of Customs shall organize a training program for administrative reconsideration personnel biannually to enhance their professional competence.

Other administrative reconsideration bodies may organize regular training programs for the administrative reconsideration personnel of their own Customs houses in light of the needs of their work.

Article 105 Customs administrative reconsideration authorities shall, in accordance with the Customs Internal Rules on Awards and Incentives, give recognition and awards to units and officers that have made remarkable achievements in safeguarding national interests, protecting the legitimate rights and interests of citizens, juristic persons or other organizations, and promoting law-based Customs administration and social harmony, in handling administrative reconsideration cases.

Customs administrative reconsideration authorities shall regularly review the work of administrative reconsideration, and give recognition and awards to units and officers that have made remarkable achievements in the work of administrative reconsideration in accordance with the Customs Internal Rules on Awards and Incentives.

Chapter VII Legal Responsibilities

Article 106 Where any of the circumstances specified in Articles 34 and 35 of the Administrative Reconsideration Law or in Article 64 of the Regulations on Implementing the Administrative Reconsideration Law occurs to a Customs administrative reconsideration authority, a Customs administrative reconsideration body or any administrative reconsideration staff, it shall be handled in accordance with the relevant provisions of the Administrative Reconsideration Law and the Regulations on Implementing the Administrative Reconsideration Law.

Article 107 Where any of the circumstances specified in Articles 36 and 37 of the Administrative Reconsideration Law or in Article 62 of the Regulations on Implementing the Administrative Reconsideration Law occurs to a respondent, it shall be handled in accordance with the relevant provisions of the Administrative Reconsideration Law and the Regulations on Implementing the Administrative Reconsideration Law.

Article 108 Where Customs at a higher level finds Customs at a lower level or relevant personnel thereof have breached any provisions of the Administrative Reconsideration Law, the Regulations on Implementing the Administrative Reconsideration Law or these Rules, it shall issue a Letter of Recommendation on Dealing with Illegal Acts to make suggestions to the relevant Customs, which shall handle the case in accordance with the provisions of the Administrative Reconsideration Law and other relevant laws and administrative regulations and file a report thereon to the Customs at a higher level.

Where a Customs administrative reconsideration body finds that the relevant Customs or personnel thereof have breached any provisions of the Administrative Reconsideration Law, the Regulations on Implementing the Administrative Reconsideration Law or these Rules, it shall issue a written Letter of Recommendation on Dealing with Illegal Acts to make suggestions to the human resources and supervisory departments concerning measures against the persons to be held accountable, or it may directly send the materials concerning the facts of violation by the relevant personnel to the human resources and supervisory departments, which shall handle the case in accordance with law and inform the Customs administrative reconsideration body which has sent the materials of the result.

Chapter VIII Supplementary Provisions

Article 109 The calculation of time of administrative reconsideration and the service of administrative reconsideration legal papers shall be conducted in accordance with the provisions of the Civil Procedure Law concerning the time and the service.

For the purpose of these Rules, “5 days” and “7 days” mentioned in relation to the time of administrative reconsideration refer to working days, not including holidays.

Article 110 Customs administrative reconsideration authorities shall not impose any charges on applicants for accepting administrative reconsideration applications.

Funding, office space, as well as transportation, communications and monitoring equipment required for Customs administrative reconsideration shall be provided by Customs at corresponding levels.

Article 111 Where a foreigner, a Stateless person or a foreign organization applies to Customs for administrative reconsideration in the territory of the People’s Republic of China, these Rules shall also apply.

Article 112 A Customs administrative reconsideration authority may use a special stamp for administrative reconsideration. In Customs administrative reconsideration activities, the special stamp for administrative reconsideration and the stamp of the administrative reconsideration authority shall have the same legal effect.

Article 113 Where a Customs administrative reconsideration authority handles an administrative reconsideration case, or a Customs house attends activities of administrative reconsideration as the respondent, the administrative reconsideration body of the relevant Customs house shall sort materials pertinent to the case and put them on file.

Article 114 The right of interpretation of these Rules shall remain with the General Administration of Customs.

Article 115 These Rules shall come into force as of November 1, 2007. The Rules of the General Administration of Customs of the People’s Republic of China on Implementing the Administrative Reconsideration Law promulgated in the form of Decree No. 78 of the General Administration of Customs on August 30, 1999 shall be repealed simultaneously.