Draft Administrative Law of Einsenland (British English)
Reference translation into British English. The Chinese source is available here. This translation preserves its numbering and legal status; it is not a jointly authenticated text of equal legal authority. See source and translation notes. The source is draft material with unresolved institutional references and other defects; translating it does not adopt or correct those provisions.
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Administrative Law of the Republic of Einsenland — Draft
Section 1
This Law is enacted in accordance with the Constitution of the Republic of Einsenland to regulate the exercise of administrative power, safeguard nationals' lawful rights and interests, improve the effectiveness of national governance and build a welfare-oriented State governed by the rule of law.
Section 2
This Law shall be the basic law in the administrative sphere, founded upon and consistent with the Constitution. All administrative acts shall comply with the Constitution and the law. In exercising their powers, administrative bodies shall respect and safeguard the constitutional provisions on nationals' fundamental rights.
Section 3
In this Law, administrative bodies means the State Council (Government), ministries and commissions, local governments at all levels, and organisations authorised by law to exercise administrative functions. Organisations authorised by laws or regulations to exercise administrative functions within their authorisation shall be subject to this Law's provisions concerning administrative bodies.
Section 4
Administrative bodies shall observe the following basic principles when exercising powers:
(1) statutory powers: without statutory authorisation there shall be no administrative power; administrative bodies shall neither create nor exercise powers outside the law;
(2) proportionality: administrative means shall be proportionate to administrative aims, and the means least affecting nationals' rights and interests shall be chosen from those capable of achieving the aim;
(3) good faith and protection of legitimate expectations: administrative bodies shall protect nationals' reliance interests and shall not withdraw or revoke effective administrative decisions or undertakings except where required by a statutory overriding public interest and through statutory procedures;
(4) openness and transparency: the grounds, procedures and results of administrative acts shall be published in accordance with the law and subject to public oversight;
(5) efficiency and convenience: administrative bodies shall improve efficiency, provide convenient services and neither evade responsibility nor delay.
Section 5
Civil servants shall be loyal to the Constitution, politically neutral, strictly honest, diligent and responsible, and pursue excellence in administrative efficiency. In performing duties, civil servants shall not owe allegiance to an individual, party, interest group or other private power.
Section 6
Administrative bodies shall provide public services in the State's legally prescribed languages: Chinese, principally in traditional characters, Cantonese, German and English. Nationals shall have the right to apply to administrative bodies, obtain information and participate in administrative procedures in any of those languages. Regulations, notices and important documents issued by administrative bodies shall be published simultaneously in all four languages.
Section 7
Administrative bodies shall support and serve the development of the socialist market economy, maintain public ownership as predominant with the joint development of multiple forms of ownership, and safeguard equal lawful participation in competition and equal legal protection for all types of market participants.
Section 8
Administrative bodies at all levels shall prepare and publish lists of powers and responsibilities in accordance with the law, specifying the scope of powers and administrative responsibilities. They shall not exercise powers outside the list of powers.
Section 9
Where two or more administrative bodies dispute jurisdiction over the same matter, the Secretary-General of the State Council shall chair mediation. If mediation fails, the Prime Minister shall determine the matter finally. Disputes over powers between local administrative bodies shall be determined by their common superior administrative body.
Section 10
The central Government shall exercise exclusive powers in the following matters, which shall not be devolved:
(1) national defence and foreign affairs;
(2) planning and construction of nationwide infrastructure;
(3) setting core public welfare standards;
(4) nationwide taxation and customs arrangements;
(5) currency issue and the basic financial regulatory system.
In other matters the central Government shall support lawful local self-government and encourage local innovation suited to local conditions.
Section 11
The allocation of functions between central and local authorities shall observe statutory reservation, priority to efficiency and consistency between powers and responsibilities. Cross-regional public affairs shall be coordinated centrally or assigned to a designated lead body. Where central authorities entrust local authorities with powers, corresponding financial resources shall be secured at the same time.
Section 12
Administrative bodies may lawfully entrust certain administrative powers to eligible organisations. Entrustment shall be in writing and specify the matters, powers, duration and responsibility. An entrusted organisation shall not entrust those powers further.
Section 13
Administrative decisions shall follow lawful, fair, open and timely procedures. Parties' rights to information, participation and remedies shall be safeguarded in administrative proceedings.
Section 14
An administrative decision affecting nationals' rights and interests shall be made in writing and state:
(1) the party's basic information;
(2) the content of the decision;
(3) its factual and legal grounds;
(4) the remedies and time limits available to the party by law.
In urgent circumstances a decision may first be given orally, but a written decision shall follow within 48 hours.
Section 15
Administrative decisions shall be served upon the parties in accordance with the law. Service may be personal, postal, entrusted, electronic or by public notice. Electronic service shall require the party's consent and confirmation of receipt. An administrative decision shall take effect on service.
Section 16
Before making the following decisions, an administrative body shall organise a hearing in accordance with the law:
(1) administrative licences and plans involving major public interests;
(2) administrative penalties and compulsion likely substantially to affect a party's rights and interests;
(3) other matters for which laws or regulations require a hearing.
Hearings shall be public, and parties shall have the rights to make statements, produce evidence and challenge evidence. The hearing record shall be an important basis for the administrative decision.
Section 17
When making an adverse decision against a party, an administrative body shall state its factual grounds, legal basis and reasons for exercising discretion. An unreasoned decision shall not serve as a basis for enforcement, and the party may seek administrative review or bring proceedings.
Section 18
An administrative officer with an interest in a party or another circumstance likely to affect impartial handling shall withdraw voluntarily. A party may also request withdrawal. Detailed withdrawal arrangements shall be prescribed by law.
Section 19
The State shall operate a negative-list system for market access. Nationals and all types of market participants may freely enter industries and sectors where access is not expressly prohibited or restricted by law. Administrative licensing shall be limited to areas such as national security, public safety, allocation of limited public resources and ecological protection, and shall be established by law.
Section 20
Administrative bodies shall digitise government services and enable the whole approval process to be conducted online. Applicants shall not be required to resubmit information which administrative bodies can obtain through government data sharing.
Section 21
Review of administrative licence applications shall be subject to statutory time limits. Failure to decide within the statutory period shall be deemed approval, except in matters involving national security, public safety or the ecological environment. Where no period is prescribed by law, a decision shall be made within 20 working days of acceptance.
Section 22
Administrative bodies shall periodically evaluate existing licensing requirements. Where evaluation finds licensing no longer necessary, they shall lawfully propose amendment or repeal of the relevant provisions to reduce unnecessary administrative approvals.
Section 23
To achieve public administration and service objectives, administrative bodies may lawfully enter into administrative contracts with natural persons, legal persons or other organisations. Formation, performance, variation and termination shall observe legality, fairness, openness and good faith.
Section 24
Government procurement shall observe open tendering, fair competition, good faith and value for money. Procurement processes and results shall be published promptly and subject to public oversight. No administrative body or individual shall impose discriminatory conditions for a particular supplier by any means.
Section 25
The State shall encourage lawful public-private cooperation. Where administrative bodies cooperate with private capital to provide public services or infrastructure, they shall enter into lawful cooperation agreements specifying rights, obligations, risk sharing and allocation of benefits and protecting the public interest from harm.
Section 26
The State shall operate a concession system in accordance with the law. Concessions for public utilities and the development or use of public resources shall be awarded through open competition and specify operating duration, service standards and regulatory measures. During the concession, administrative bodies shall supervise lawfully to safeguard public interests and service quality.
Section 27
Parties to an administrative contract dispute may lawfully seek administrative review or bring administrative proceedings before an administrative court. Where an administrative body unilaterally varies or terminates a contract in the public interest, it shall provide reasonable compensation to the other party.
Section 28
An administrative body shall not impose the same type of administrative penalty more than once for the same unlawful act by a national. Where the same act violates several legal rules, the provision prescribing the heavier penalty shall apply.
Section 29
Administrative penalties shall follow a graduated approach. Administrative bodies shall first use flexible measures such as reminders, advice and correction within a specified period. Only where those measures cannot achieve the purpose may lawful penalties such as warnings, fines, temporary withholding of licences or suspension of business for rectification be imposed.
Section 30
Before imposing a major administrative penalty such as a large fine, confiscation of unlawful proceeds, an order to suspend production or business, or revocation of a licence, an administrative body must inform the party in writing of the unlawful facts, reasons for the penalty and legal basis and safeguard the rights to make statements, defend the case and a hearing.
Section 31
No administrative penalty shall be imposed for an unlawful act not discovered within two years, except where it concerns nationals' life, health or safety or financial security and has harmful consequences. The period shall run from the date of the unlawful act; for continuing or continuous acts it shall run from their cessation.
Section 32
Administrative compulsory measures and compulsory administrative enforcement shall be established by law. Measures such as sealing, seizure and freezing shall require an express legal basis and use the means least affecting the party. Compulsory measures shall not exceed 30 days; an extension shall require approval by a People's Court.
Section 33
Administrative compulsory enforcement against private homes at night or on statutory public holidays shall be strictly prohibited, except during a state of emergency prescribed by the Constitution. Violence, threats or other unlawful means shall not be used in compulsory administrative enforcement. Administrative bodies shall not subject nationals to degrading treatment.
Section 34
When the purpose of a compulsory measure has been achieved or its conditions no longer exist, the administrative body shall lift it immediately. Damage caused to a party by unlawful or improper administrative compulsion shall be compensated in accordance with the law.
Section 35
Administrative bodies shall fulfil universal service obligations and ensure non-discriminatory nationwide coverage of basic public services including basic education, basic healthcare, public transport, drinking water and electricity. Special safeguards shall be adopted for remote areas and disadvantaged groups.
Section 36
Administrative bodies shall proactively publish in accordance with the law:
(1) administrative regulations, rules and normative administrative documents;
(2) their functions, organisational structure and procedures;
(3) meeting summaries and decision-making grounds concerning the public interest;
(4) budgets, final accounts and itemised major project expenditure;
(5) licensing matters, conditions and results.
Openness shall be the rule and non-disclosure the exception. Non-disclosure shall be confined to lawfully determined State secrets, commercial secrets and personal privacy. Information shall nevertheless be disclosed where the right-holder consents or the administrative body considers that non-disclosure may materially affect the public interest. The information above shall be published digitally without delay and provided in all four legally prescribed languages.
Section 37
Administrative bodies shall promote lawful and orderly opening of public data. Openness shall observe security and control, classification and grading, and convenient use. Nationals and market participants shall have the right to obtain and use public data in accordance with the law.
Section 38
Administrative bodies shall establish a standardised public service system specifying service content, quality requirements and supervision and appraisal methods. A national disputing public service quality shall have the right to complain to the administrative body, which shall respond and deal with the matter within the statutory period.
Section 39
A national dissatisfied with an administrative act may apply for administrative review to the immediately superior administrative body of the body which performed it. The reviewing body shall decide within 60 days of acceptance. Review shall not be compulsory; a national may bring administrative proceedings directly in accordance with the law.
Section 40
A national dissatisfied with an administrative act shall have the right to bring administrative proceedings in an administrative court in accordance with the law. Administrative courts shall exercise adjudication independently in administrative cases, and their judgments shall be final.
Section 41
Administrative proceedings shall fall within the jurisdiction of the administrative court at the place of the act or the defendant's location. Challenges to acts of State Council ministries or commissions shall fall within the jurisdiction of Intermediate Administrative Courts. For cases crossing administrative boundaries, jurisdiction shall be designated by the superior administrative court.
Section 42
In administrative proceedings, the defendant administrative body shall bear the burden of proving the legality of its act. If it cannot produce evidence establishing legality, it shall bear the adverse consequences. Allocation of the burden of proof in proceedings concerning disclosure of information, administrative compensation and similar matters shall follow the law.
Section 43
Where unlawful exercise of administrative powers, or unlawful conduct by an administrative officer performing duties, damages a national's personal rights, property rights or other lawful rights and interests, the State shall provide prompt and adequate compensation from treasury funds in accordance with the law. Scope and standards shall be prescribed by law.
Section 44
An administrative act shall be revoked or varied in accordance with the law where:
(1) the principal evidence is insufficient;
(2) laws or regulations have been applied incorrectly;
(3) statutory procedures have been violated;
(4) powers have been exceeded or abused;
(5) the act is manifestly improper.
Where revocation of an unlawful act may seriously harm the public interest, an administrative body may refrain from revoking it but shall compensate affected nationals in accordance with the law.
Section 45
Administrative bodies shall accept lawful oversight by the Commission for Public Welfare and Integrity. The Commission may investigate and audit their performance of duties and the integrity of their public officials. Administrative bodies shall cooperate with the Commission's lawful work and shall not obstruct or interfere with it.
Section 46
State audit bodies shall independently audit and supervise administrative bodies' financial income and expenditure, use of public funds and management of State-owned assets in accordance with the law and report results periodically to Parliament. Unlawfulness or breaches of rules discovered shall lead to lawful recommendations for handling and referral to the relevant bodies to pursue liability.
Section 47
Parliament and its standing committees shall oversee administrative bodies in accordance with the law, including by:
(1) hearing and considering government work reports and special reports;
(2) conducting thematic investigations and law-enforcement inspections;
(3) questioning heads of administrative bodies;
(4) considering and approving budgets and final accounts.
Administrative bodies shall report truthfully to Parliament and accept questions and investigations, without concealment, refusal or false statements.
Section 48
Where a key public welfare decision involves a major error or corruption, the decision-maker's political and legal responsibility shall not cease upon a change of office, transfer or retirement. Detailed arrangements for lifelong accountability shall be prescribed by law.
Section 49
The State shall protect the lawful right of the news media and the public to scrutinise administrative inaction, improper action and unlawful administration. No administrative body or individual shall retaliate against media organisations or relevant persons lawfully exercising public oversight. Nationals may report and accuse unlawful conduct or dereliction by administrative bodies and officers through statutory channels.
Section 50
During a state of emergency prescribed by the Constitution, the President may issue an order temporarily suspending the application of certain provisions of this Law, but must submit it to the House of the People for filing within 48 hours and restore application immediately upon termination of the emergency. Core guarantees of nationals' fundamental rights and judicial remedies shall not be suspended during an emergency.
Section 51
Authority to interpret this Law shall belong to the Supreme Court and Constitutional Court. Both courts shall interpret the meaning and application of its provisions in accordance with the spirit of the Constitution.
Section 52
This Law shall enter into force on the date of promulgation. Where previously promulgated administrative regulations or rules conflict with it, this Law shall prevail. Relevant bodies shall complete review and amendment within one year of its entry into force.