This website uses cookies to improve your browsing experience. By continuing to use this website you agree to our use of cookies. For more information on our use of cookies, click here to review the Cookies Policy.。
The Code of Administration Procedure was announced by the President on 3 February 1999. The Code prescribes the procedures that administrative agencies should follow prior to effecting administrative acts. The Code has 8 chapters comprising 175 articles in all, and will take effect on 1 January 2001. Major contents are outlined below:
With a view to regulating public powers and in line with the substantive rules of administrative law, the Code stipulates that the following principles should be observed in administrative acts:
1.Administrative acts should follow the law and general legal principles.
2.The content should be clear-cut.
3.No discriminatory treatment unless with just cause.
4.The means adopted should serve the achievement of the end.
5.In cases where various different means could achieve the end, those means should be chosen which least harm the people.
6.Administrative acts should be carried out in good faith, and the proper, reasonable reliance of the people should be safeguarded.
7.Simultaneous attention should be given to circumstances both favorable and unfavorable to the parties.
8.When exercising discretionary powers, the legal scope of discretion should not be overstepped. The exercise of such powers should conform to the intent of the legal authorization.
The principle of ex officio execution is adopted. The initiation and conclusion of administrative procedure should in principle be decided ex officio by the administrative agency, and should not be constrained by the parties.
The principle of ex officio investigation is adopted. Administrative agencies executing administrative acts should, ex officio, investigate the facts and evidence. They also have the authority to make verifications and inquests, and are not constrained by the testimony or evidence furnished by the parties. However, they should rely on logic and accepted rules of thumb in making judgments of factual truth, and they should inform the parties of their decision and the grounds for it.
Information in the possession or safekeeping of administrative agencies should in principle be openly available; restricted access should be the exception. Laws concerning the public disclosure and restriction of information of administrative agencies should be completed and passed within two years of the promulgation of this Code. Except where state secrets are involved, administrative agencies should take the initiative in publicly disclosing the following information:
1.Laws and ordinances.
2.Documents related to administrative guidance.
3.Requirements for granting of permission (approval).
4.Administrative plans, operation statistics, and research reports.
5.Budget and final accounting statements.
6.Public construction and procurement contracts and external relations documents.
7.Acceptance of and payment for grants.
8.Meeting minutes of committee-type organizations.
Parties to acts or interested persons may apply with administrative agencies for access to file information, but only in cases where such access is necessary to claim or uphold their legal rights and interests.
The principle of participation by the parties is adopted. Hearing procedure is prescribed, enabling parties and interested persons to state their opinions in public testimony to be recorded in transcripts. In cases where administrative sanctions restrict or strip a person's freedom or rights and no hearing has been held, the person should be given an opportunity to deliver his statement.
Service procedures are stipulated.
Administrative disposition is defined. In cases where the administrative agency effecting the administrative disposition has the power of discretion, or where explicitly provided by law, the following kinds of supplementary clauses may be added to the administrative disposition:
1.Duration.
2.Conditions.
3.Requirements.
4.Reservation of the right to nullify the administrative disposition
5.Reservation of the right to subsequently add or alter the requirements
However, the supplementary clauses may not run counter to the objective of the administrative disposition, and should be legitimately and reasonably related to that objective.
The validity, invalidity, cancellation, and nullification of administrative disposition are stipulated, as well as matters concerning the correction and changing of defective administrative disposition.
A rule of protection for reliance is stipulated: After the cancellation of an illegal benefit-conferring administrative disposition, the beneficiary may apply with the administrative agency for compensation for any loss of property that arose out of reliance except under circumstances where such reliance does not merit protection.
The obligation of beneficiaries to return any undue benefits obtained is specified: If an illegal benefit-conferring administrative disposition is canceled, or nullified, or certain conditions have been met, and in circumstances where it has retroactively lost its force, the beneficiary has the obligation to return any unjustly obtained benefits.
Statute of limitations: The right of claim under public law should be extinguished if not exercised within five years, unless otherwise specifically provided by law.
Administrative agencies may establish administrative contracts, which should accord with the following provisions:
1.When the relevant law requires that the counterpart should be decided by a selection process or other competitive means, administrative agencies should first publicly announce the required qualifications and selection procedures, and should give participants in the competition the opportunity to express their opinions.
2.As a principle, administrative contracts should be concluded in writing.
3.The causes that render an administrative contract void should be specified.
4.Administrative agencies may, according to written stipulations, furnish necessary guidance or assistance to the other party to a contract to ensure the achievement of the public interest.
5.When the other party to a contract is a private party, administrative agencies may, in order to prevent or eliminate serious harm to the public interest, adjust the contract contents within the necessary scope or terminate the contract. However, they should compensate the other party for any loss of property that results.
6.In case of fundamental change of circumstances, the parties to a contract may under certain conditions and in the interest of fairness request to adjust contract contents or terminate the contract. However, the administrative agency may, after compensating the other party's losses, order him to continue to perform the obligations originally agreed upon.
7.In cases where a contract stipulates voluntary acceptance of execution, if the debtor fails to make payment, the creditor may take the contract as executive title for compulsory execution.
8.The relevant provisions of the Civil Code should in principle apply to administrative contracts.
The drafting of laws and regulations should be announced and made public knowledge beforehand, and may be made the subject of public hearings. Also, the content of laws and regulations should specify the basis of their statutory authority, and may not overstep the scope and legislative intent of that statutory authority.
Administrative rules are defined and provisions for their promulgation and nullification are specified.
The definition and principles of administrative guidance are specified.
