Chapter V Evidence

Article 31 Evidence shall be classified as follows:

(1) documentary evidence;

(2) material evidence;

(3) audio-visual material;

(4) testimony of witnesses;

(5) statements of the parties;

(6) expert conclusions; and

(7) records of inquests and records made on the scene.

Any of the above-mentioned evidence must be verified by the court before it can be taken as a basis for ascertaining a fact.

Article 32 The defendant shall have the burden or proor for the specific administrative act he has undertaken and shall provide the evidence and regulatory documents in accordance with which the act has been undertaken.

Article 33 In the course of legal proceedings, the defendant shall not by himself collect evidence from the plaintiff and witnesses.

Article 34 A people's court shall have the authority to request the parties to provide or supplement evidence.

A people's court shall have the authority to obtain evidence from the relevant administrative organs, other organizations or citizens.

Article 35 In the course of legal proceedings, when a people's court considers that an expert evaluation for a specialized problem is necessary, the expert evaluation shall be made by a expert evaluation department as specified by law. In the absence of such a department, the people's court shall designate one to conduct the expert evaluation.

Article 36 Under circumstances where there is a likelihood that evidence may be destroyed or lost or difficult to obtain later on, the participants in proceedings may apply to the people's court for the evidence to be preserved. The people's court may also on its own initiative take measures to preserve such evidence.

Chapter VI Bringing a Suit and Accepting a Case

Article 37 A citizen, a legal person or any other organization may, within the scope of cases acceptable to the people’s courts, apply to an administrative organ at the next higher level or to an administrative organ as prescribed by the law or regulations for reconsideration, anyone who refuses to accept the reconsideration decision may bring a suit before a people’s court; a citizen, a legal person or any other organization may also bring a suit directly before a people’s court.

In circumstances where, in accordance with relevant provisions of laws or regulations, a citizen, a legal person or any other organization shall first apply to an administrative organ for reconsideration and then bring a suit before a people’s court, if he or it refuses to accept the reconsideration decision, the provisions of the laws or regulations shall apply.

Article 38 If a citizen, a legal person or any other organization applies to an administrative organ for reconsideration, the organ shall make a decision within two months from the day of the receipt of the application, except as otherwise provided for by law or regulations.

Anyone who refuses to accept the reconsideration decision may bring a suit before a people’s court within l5 days from the day of the receipt of the reconsideration decision. If the administrative organ conducting the reconsideration fails to make a decision on the expiration of the time limit, the applicant may bring a suit before a people’s court within l5 days after the time limit for reconsideration expires, except as otherwise provided for by law.

Article 39 If a citizen, a legal person or any other organization brings a suit directly before a people’s court, he or it shall do so within three months from the day when he or it knows that a specific administrative act has been undertaken, except as otherwise provided for by law.

Article 40 If a citizen, a legal person or any other organization fails to observe the time limit prescribed by law due to force majeure or other special reasons, he or it may apply for an extention of the time limit within ten days after the obstacle is removed; the requested extention shall be decided by a people’s court.

Article 41 The following requirements shall be met when a suit is brought:

(l) The plaintiff must be a citizen, a legal person or any other organization that considers a specific administrative act to have infringed upon his or its lawful rights and interests;

(2) There must be a specific defendant or defendants;

(3) There must be a specific claim and a corresponding factual basis for the suit; and

(4) The suit must fall within the scope of cases acceptable to the people’s courts and the specific jurisdiction of the people’s court where it is filed.

Article 42 When a people’s court receives a bill of complaint, it shall, upon examination, file a case within seven days or decide to reject the complaint. If the plaintiff refuses to accept the decision, he may appeal to a people’s court.

Chapter VII Trial and Judgment

Article 43 A people’s court shall send a copy of the bill of complaint to the defendant within five days of filing the case. The defendant shall provide the people’s court with the documents on the basis of which a specific administrative act has been undertaken and file a bill of defence within ten days of receiving the copy of the bill of complaint. The people’s court shall send a copy of the bill of defence to the plaintiff within five days of receiving it.

Failure by the defendant to file a bill of defence shall not prevent the case from being tried by the people’s court.

Article 44 During the time of legal proceedings, execution of the specific administrative act shall not be suspended. Execution of the specific administrative act shall be suspended under one of the following circumstances:

(l) where suspension is deemed necessary by the defendant;

(2) where suspension of execution is ordered by the people’s court at the request of the plaintiff because, in the view of the people’s court, execution of the specific administrative act will cause irremediable losses and suspension of the execution will not harm public interests; or

(3) where suspension of execution is required by the provisions of laws or regulations.

Article 45 Administrative cases in the people 'e courts shall be tried in public, except for those that involve state secrets or the private affairs of individuals or are otherwise provided for by law.

Article 46 Administrative cases in the people’s courts shall be tried by a collegial panel of judges or of judges and assessors. The number of members of a collegial panel shall be an odd number of three or more.

Article 47 If a party considers a member of the judicial personnel to have an interest in the case or to be otherwise related to it, which may affect the impartial handling of the case, the party shall have the right to demand his withdrawal.

If a member of the judicial personnel considers himself to have an interest in the case or to be otherwise related to it, he shall apply for withdrawal.

The provisions of the two preceding paragraphs shall apply to court clerks, interpreters, expert witnesses and persons who conduct inquests.

The withdrawal of the president of the court as the chief judge shall be decided by the court’s adjudication committee; the withdrawal of a member of the judicial personnel shall be decided by the president of the court; the withdrawal of other personnel shall be decided by the chief judge. Parties who refuse to accept the decision may apply for reconsideration.

Article 48 If the plaintiff refuses to appear in court without justified reasons after being twice legally summoned by the people’s court, the court shall consider this an application for the withdrawal of the suit; if the defendant refuses to appear in court without justified reasons, the court may make a judgment by default.

Article 49 If a participant in the proceedings or any other person commits any of the following acts, the people’s court may, according to the seriousness of his offence, reprimand him, order him to sign a statement of repentance or impose upon him a fine of not more than l,000 yuan or detain him for not longer than l5 days; if a crime is constituted, his criminal responsibility shall be investigated:

(l) evading without reason, refusing to assist in or obstructing the execution of the notice of a people’s court for assistance in its execution by a person who has the duty to render assistance;

(2) forging, concealing or destroying evidence;

(3) instigating, suborning or threatening others to commit perjury or hindering witnesses from giving testimony;

(4) concealing, transferring, selling or destroying the property that has been sealed up, seized or frozen;

(5) using violence, threats or other means to hinder the personnel of a people’s court from performing their duties or disturbing the order of the work of a people’s court; or

(6) insulting, slandering, framing, beating or retaliating against the personnel of a people’s court, participants in proceedings or personnel who assist in the execution of duties;

A fine or detention must be approved by the president of a people’s court. Parties who refuse to accept the punishment decision may apply for reconsideration.

Article 50 A people’s court shall not apply conciliation in handling an administrative case.

Article 51 Before a people’s court announces its judgment or order on an administrative case, if the plaintiff applies for the withdrawal of the suit, or if the defendant amends its specific administrative act and, as a result, the plaintiff agrees and applies for the withdrawal of the suit, the people’s court shall decide whether or not to grant the approval.

Article 52 In handling administrative cases, the people’s courts shall take the law, administrative rules and regulations and local regulations as the criteria. Local regulations shall be applicable to administrative cases within the corresponding administrative areas.

In handling administrative cases of a national autonomous area, the people’s courts shall also take the regulations on autonomy and separate regulations of the national autonomous area as the criteria.

Article 53 In handling administrative cases, the people’s courts shall take, as references, regulations formulated and announced by ministries or commissions under the State Council in accordance with the law and administrative rules and regulations, decisions or orders of the State Council and regulations formulated and announced, in accordance with the law and administrative rules and regulations of the State Council, by the people’s governments of provinces, autonomous regions and municipalities directly under the Central Government, of the cities where the people’s governments of provinces and autonomous regions are located, and of the larger cities approved as such by the State Council.

If a people’s court considers regulations formulated and announced by a loca1 people’s government to be inconsistent with regulations formulated and announced by a ministry or commission under the State Council, or if it considers regulations formulated and announced by ministries or commissions under the State Council to be inconsistent with each other, the Supreme People’s Court shall refer the matter to the State Council for interpretation or ruling.

Article 54 After hearing a case, a people’s court shall make the following judgments according to the varying conditions:

(l) If the evidence for undertaking a specific administrative act is conclusive, the application of the law and regulations to the act is correct, and the legal procedure is complied with, the specific administrative act shall be sustained by judgment.

(2) If a specific administrative act has been undertaken in one of the following circumstances, the act shall be annulled or partially annulled by judgment, or the defendant may be required by judgment to undertake a specific administrative act anew:

a. inadequacy of essential evidence;

b. erroneous application of the law or regulations;

c. violation of legal procedure;

d. exceeding authority; or

e. abuse of powers.

(3) If a defendant fails to perform or delays the performance of his statutory duty, a fixed time shall be set by judgment for his performance of the duty.

(4) If an administrative sanction is obviously unfair, it may be amended by judgment.