Decree of the State Council of the People's Republic of China

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Decree of the State Council of the People's Republic of China

The People's Republic of China


Decree of the State Council of the People's Republic of China

No. 431

Regulations on Letters and Visits, adopted at the 76th Executive Meeting of the State Council on January 5, 2005, are hereby promulgated and shall be effective as of May 1, 2005.

Premier Wen Jiabao

January 10, 2005

Regulations on Letters and Visits

(Adopted at the 76th Executive Meeting of the State Council on January 5, 2005, promulgated by Decree No. 431 of the State Council of the People's Republic of China on January 10, and effective as of May 1, 2005)

Chapter I General Provisions

Article 1 These Regulations are formulated for the purposes of enhancing relations between the people's governments at all levels and the people, protecting the lawful rights and interests of letter-writers and visitors, and maintaining a good order in letter-writing and visiting.

Article 2 The term "letters and visits" in these Regulations means that citizens, legal persons or other organizations give information, make comments or suggestions or lodge complaints to the people's governments at all levels and the relevant departments of the people's governments at or above the county level through correspondence, E-mails, faxes, phone calls, visits, and so on, which are dealt with by the relevant administrative departments according to law.

A citizen, legal person or any other organization that gives information, makes comments or suggestions or lodges complaints by such means as prescribed in the preceding paragraph is defined as a letter-writer or visitor.

Article 3 The people's governments at all levels and the relevant departments of the people's governments at or above the county level shall effectively handle letters and visits by conscientiously dealing with letters, receiving visitors, heeding people's comments, suggestions and complaints and accepting their supervision, so that the people's interests are best served.

The people's governments at all levels and the relevant departments of the people's governments at or above the county level shall keep free-flowing channels for letter-writers and visitors and provide convenience for the letter-writers or visitors who give information, make comments or suggestions, or lodge complaints by such means as prescribed in these Regulations.

No organization or individual may retaliate against letter-writers or visitors.

Article 4 The work regarding letters and visits shall be done under the leadership of the people's governments at all levels and in adherence to the principles of territorial jurisdiction, responsibilities assumed at different levels, the department in charge being the department responsible and combination of the need to solve problems lawfully, timely and locally with persuasion.

Article 5 The people's governments at all levels and the relevant departments of the people's governments at or above the county level shall make policy decisions in a scientific and democratic manner, perform their duties according to law and prevent contradictions and disputes at source from leading to letters and visits.

Any people's government at or above the county level shall establish a work pattern for letters and visits characterized by unified leadership, coordination among different departments, overall planning and all-round consideration, seeking both temporary and permanent solution, each assuming its own responsibilities and joining efforts with others for the common goal, and it shall resolve contradictions and disputes in a timely manner by holding joint meetings and setting up a mechanism for making investigation and coordination and handling letters and visits and a working system of supervision in this respect.

Responsible persons of the people's governments at all levels and the relevant departments of the people's governments at or above the county level shall read letters for important issues and give written instructions on them, receive visitors for important issues, listen to reports on the work regarding letters and visits, and study and solve overriding problems in such work.

Article 6 Any people's government at or above the county level shall set up a department for letters and visits. The relevant department of the people's government at or above the county level and the people's government of the town or township shall, according to the principles of facilitating work and creating convenience for letter-writers and visitors, respectively assign a unit responsible for the work regarding letters and visits (hereinafter referred to as the unit for letters and visits) or individuals the specific reasonability for work in this field.

The department for letters and visits of the people's government at or above the county level is the administrative department of the people's government at the corresponding level which is responsible for the work regarding letters and visits and performs the following duties:

(1) to accept the letter-or-visit matter presented by a letter-writer or visitor, transmit it to another organ, or assign another organ to handle it;

(2) to handle the letter-or-visit matter handed over by the people's government at a higher level or at the corresponding level;

(3) to coordinate efforts in handling important letter-or-visit matters;

(4) to urge and examine the handling of letter-or-visit matters;

(5) to study and analyze both letters and visits, conduct investigation and study and, in a timely manner, make suggestions on improving policies and work to the people's government at the corresponding level; and

(6) to provide guidance to other relevant departments of the people's government at the corresponding level and the departments or units for letters and visits of the people's governments at lower levels in their work regarding letters and visits.

Article 7 The people's governments at all levels shall establish and improve the responsibility system for letters and visits, and shall, in strict accordance with the provisions of the relevant laws, administrative regulations and these Regulations, investigate the individuals who are responsible for malfeasance or dereliction of duty committed in the work regarding letters and visits and circulate a notice of the matter within an appropriate scope.

The people's governments at all levels shall incorporate the achievements scored in the work regarding letters and visits into the performance assessment of public servants.

Article 8 The relevant administrative organ or unit shall give rewards to the letter-writer or visitor who, by giving information or presenting comments or suggestions in its letter or visit, has made contributions to the national economic and social development, and to the improvement of the work of State organs and the protection of public interests.

The relevant administrative organ shall give rewards to the unit or individual that has scored outstanding achievements in the work regarding letters and visits.

Chapter II Channels for Letters and Visits

Article 9 The people's governments at all levels and the relevant departments of the people's governments at or above the county level shall make known to the public such matters as the correspondence and E-mail addresses, telephone numbers for complaints, time and places for receiving letters and visitors, methods of inquiring about the progress and results of the letter-or-visit matters handled.

The people's governments at all levels and the relevant departments of the people's governments at or above the county level shall, at the places for receiving letters and visitors or at the websites, make known to the public the laws, regulations and rules, the procedures for handling letter-or-visit matters and other matters concerning provision of convenience to letter-writers and visitors.

Article 10 The people's governments at the level of a city divided into districts and those at the county level and their relevant departments and the people's governments of towns or townships shall establish the system of reception day on which the responsible persons of administrative organs read letters and receive visitors, and coordinate efforts in handling letter-or-visit matters. Letter-writers and visitors can report letter-or-visit matters face to face to the responsible persons of the administrative organs at the publicized reception place on the publicized reception day.

Responsible persons of the people's government at or above the county level and of the relevant departments of the said government or the individuals designated by them may go to the places where the letter-writers or visitors live to talk to them face to face and exchange views with them with regard to the overriding problems they have reported.

Article 11 The department for letters and visits of the State shall, by making full use of the existing network resources for governmental affairs information, establish a national information system for letters and visits, in order to provide convenience for letter-writers and visitors to present letter-or-visit matters and inquire about the handling of the letters and visits locally.

The local people's government at or above the county level shall, by making full use of the existing network resources for governmental affairs information, establish or designate the information system for letters and visits within its administrative areas and connect its information system for letters and visits with those of the people's governments at higher levels, their relevant departments and the people's governments at lower levels.

Article 12 The department for letters and visits or any other relevant departments of the people's government at or above the county level shall, in a timely manner, input the complaint lodged by a letter-writer or visitor into the information system for letters and visits. The letter-writer or visitor may, on the strength of the complaint acceptance certificate issued by the administrative organ, go to the department for letters and visits or the reception place of the relevant department of the local people's government to inquire about the handling of the complaint. The specific measures and procedures therefor shall respectively be formulated by the people's government of a province, autonomous region or municipality directly under the Central Government.

Article 13 In light of the actual needs in the work regarding letters and visits, the people's governments at the level of a city divided into districts and those at the county level may establish a working mechanism in which the government plays the leading role and all sectors of society take part and which facilitates rapid settlement of disputes.

The departments and units for letters and visits shall organize the relevant public organizations, legal aid agencies, professionals, volunteers and others to joint efforts in handling complaints lodged by letter-writers and visitors in a lawful, timely and reasonable way through advice, education, consultation, mediation, hearing, or by other means.

Chapter III Presenting Letter-or-visit Matters

Article 14 Where a letter-writer or visitor gives information or makes comments or suggestions on the performance of duties by the following organizations or individuals, or is not satisfied with the performance of duties by the following organizations or individuals, it may present letter-or-visit matters to the relevant administrative organs:

(1) administrative organs or their staff members;

(2) organizations that are authorized by laws or regulations to perform the functions of administration of public affairs, or their staff members;

(3) enterprises or institutions providing public service, or their staff members;

(4) individuals in public organizations or other enterprises or institutions who are appointed or dispatched by administrative organs of the State; and

(5) villagers' committees, residents' committees or their members.

With regard to the complaints that shall be handled according to law through litigation, arbitration, administrative reconsideration or other statutory means, the letter-writer or visitor shall present them to the relevant organs according to the procedures as provided for by the relevant laws and administrative regulations.

Article 15 With regard to a letter-or-visit matter that falls within the scope of the functions and powers of the people's congresses at all levels, the standing committee of the people's congress at or above the county level, the people's court or the people's procuratorate, the letter-writer or visitor shall present it to the people's congress, its standing committee, people's court or people's procuratorate respectively and abide by the provisions of Articles 16, 17, 18, 19 and 20 of these Regulations.

Article 16 Where a letter-writer or visitor intends to present a letter-or-visit matter through visit, it shall present the letter-or-visit matter to the organ at the corresponding level or the next higher level that, according to law, has the power to handle the letter-or-visit matter. If a letter-or-visit matter has been accepted or is in the process of being handled and the letter-writer or visitor, before the expiration of the time limit, presents the same letter-or-visit matter to the organ at the higher level of the organ that has accepted and is handling the letter-or-visit matter, the former shall not accept the letter-or-visit matter.

Article 17 A letter-writer or visitor shall, in general, present a letter-or-visit matter through correspondence, E-mail, fax or any other written form. Where it lodges a complaint, it shall, in addition, state clearly its name (title), address, requests, the facts and reasons.

With regard to the oral presentation of a complaint, the relevant organ shall record the name (title) and address of the letter-writer or visitor, its requests, the facts and reasons.

Article 18 Where a letter-writer or visitor who intends to present a letter-or-visit matter through visit, it shall go to the reception place established or designated by the organ concerned.

Where two or more letter-writers or visitors intend to present the same letter-or-visit matter through visit, they shall choose representatives, and the number of representatives shall not exceed five.

Article 19 A letter-writer or visitor shall be objective in presenting letter-or-visit matters, the letter-or-visit matters presented shall be true to facts, and it shall be responsible for the truthfulness of the contents of the materials it provides. It shall not make up stories, distort facts, frame or bring a false charge against others.

Article 20 Letter-writers and visitors shall, in the course of writing letters or making visits, abide by laws and regulations, shall not harm the interests of the State, society or the collective or infringe upon the lawful rights of other citizens, shall conscientiously maintain public order and the order in handling letters and visits, and shall not commit any of the following acts:

(1) illegally assembling around offices of State organs or public places, encircling and attacking State organs, intercepting official vehicles, or jamming and obstructing traffic;

(2) carrying dangerous articles or tools under control;

(3) humiliating, beating up or threatening functionaries of State organs or illegally restricting other people's freedom of the individual;

(4) staying and making trouble at the reception places for letters and visits, or leaving the individuals who are unable to look after themselves at such places;

(5) inciting, colluding with, coercing or enticing with money or things of value others to write letters or make visits, or manipulating from behind the scenes others into doing so, or taking advantage of letters and visits to accumulate wealth; or

(6) committing other acts that disrupt public order or impair national or public security.

Chapter IV Accepting Letter-or-visit Matters

Article 21 The department for letters and visits of the people's government at or above the county level shall, upon receiving a letter or visit, register the letter-or-visit matter presented and handle it on the merits of each case within 15 days in the following ways:

(1) With regard to a letter-or-visit matter specified in Article 15 of these Regulations, notify the letter-writer or visitor that it presents such matter to the people's congresses or its standing committee, people's court or people's procuratorate respectively; and reject the matter which has been or shall be handled according to law through litigation, arbitration, administrative reconsideration or any other statutory means, while notifying the letter-writer or visitor that it presents the matter to the organ concerned according to the procedures as provided for by the relevant laws or administrative regulations.

(2) With regard to a letter-or-visit matter which shall be handled and decided on by the people's government at the corresponding level or the department thereof according to their statutory functions and duties, transfer such matter to the administrative organ which has the power to handle it; or make timely suggestions and submit such matter to the people's government at the corresponding level for decision in case of any important or urgent matter.

(3) With regard to a letter-or-visit matter which involves an administrative organ at a lower level or its staff members, directly transfer such matter to the administrative organ which has the power to handle it according to the principles of territorial jurisdiction, responsibilities assumed at different levels, and the department in charge being the department responsible, and send a copy of the matter to the department or unit for letters and visits of the people's government at the next lower level.

The department for letters and visits of the people's government at or above the county level shall notify such department or unit of the people's government at the next lower level of the matter transferred regularly, and the department or unit for letters and visits of the people's government at a lower level shall report to such department of the people's government at the next higher level about the handling of the transferred matter regularly.

(4) With regard to any important matter among the letter-or-visit matters transferred and feedback on the results of the handling of which is required, send it directly to the administrative organ which has the power to handle it, and ask the organ to feed back the results within the designated time limit for handling it and submit reports on the results of the handling.

Within 15 days from the date the letter-or-visit matter is transferred or assigned thereto according to the provisions of Items (2) to (4) of the preceding paragraph, the administrative organ concerned shall decide whether to accept the matter and notify the letter-writer or visitor of the decision in writing, and inform the department or unit for letters and visits of its decision as required.

Article 22 With regard to a letter-or-visit matter which is directly presented to the administrative organ other than the departments or unit for letters and visits of the people's governments at different levels by a letter-writer or visitor according to the provisions of these Regulations, the administrative organ concerned shall register such matter. A letter-or-visit matter that conforms to the provisions of the first paragraph of Article 14 of these Regulations and falls within the scope of the statutory functions and powers of the said organ shall be accepted by it; and it shall not shift the responsibility onto other organs, take a perfunctory attitude or delay handling the matter. If a letter-or-visit matter does not fall within the scope of the functions and powers of the said organ, it shall notify the letter-writer or visitor that it presents the matter to the organ which has the power to handle the matter.

Where, upon receiving a letter-or-visit matter, the administrative organ concerned can, on the spot, decide whether to accept it, the said organ shall do so in writing. If such decision can not be made on the spot, the said organ shall, within 15 days from the date of receipt of the matter, notify the letter-writer or visitor in writing, unless the name (title) or address of the letter-writer or visitor is unclear.

Relevant administrative organs shall notify each other of the letter-or-visit matters they have accepted.

Article 23 The administrative organ and its staff members shall not divulge or transmit the materials of accusation or exposure or the relevant information provided by a letter-writer or visitor to the individual or department accused or exposed.

Article 24 Where a letter-or-visit matter involves two or more administrative organs, it shall be handled by them through consultation. If disagreement arises in handling of the matter, their common administrative organ at the next higher level shall decide on which organ handles the matter.

Article 25 Where an administrative organ is split up, merges with another or is dissolved, the letter-or-visit matters on which it shall make a decision shall be handled by the administrative organ which continues to perform its functions and powers. If the functions and duties are unclear, the people's government at the corresponding level or the organ designated by such government shall handle the matter.

Article 26 When a citizen, legal person or any other organization discovers an important or urgent letter-or-visit matter or information which may exert an influence on society, it may report the matter to the relevant administrative organ nearby. After receiving such report, the local people's governments at different levels shall immediately report to the people's government at the next higher level and, if necessary, circulate a notice of such matter among the competent departments. After receiving the report, the relevant department of the local people's government at or above the county level shall immediately report to the people's government at the corresponding level and to the competent department at the next higher level and, if necessary, circulate a notice of such matter among the competent departments. After receiving the report, the relevant department of the State Council shall immediately report to the State Council and, if necessary, circulate a notice among the competent departments.

The administrative organ shall not conceal, give a false report about or delay reporting any important or urgent letter-or-visit matter and information or incite others to do so.

Article 27 With regard to important or urgent letter-or-visit matters and information which may exert an influence on society, the administrative organ concerned shall, within the scope of its functions and duties and according to law, take timely measures to prevent the occurrence and extension of adverse influence.

Chapter V Handling, and Supervising and Urging the Handling of Letter-or-visit Matters

Article 28 In handling the letter-or-visit matters presented by a letter-writer or visitor, the administrative organ and its staff members shall perform their duties whole-heartedly, handle the matters impartially, ascertain the facts, clearly distinguish the responsibilities, publicize the legal system, conduct persuasion and handle the matter properly in a timely manner, and they shall not shift the responsibility onto others, take a perfunctory attitude or delay handling the matters.

Article 29 Where the information given by a letter-writer or visitor or the comments or suggestions made thereby are beneficial to improvement of the work of the administrative organ and to promotion of national economic and social development, the relevant administrative organ shall conscientiously study, evaluate and unhesitatingly accept them.

Article 30 The staff member of an administrative organ who has a direct interest in the letter-or-visit matter presented by a letter-writer or visitor or with the letter-writer or visitor shall recuse himself.

Article 31 In handling the letter-or-visit matter presented by a letter-writer or visitor, the administrative organ which has the power to handle such matter shall heed the facts and reasons stated by the letter-writer or visitor. When necessary, it may ask the letter-writer or visitor, or the organization or individual concerned to give an explanation; and where further verification is needed, it may conduct investigation among other organizations or individuals.

A hearing may be held for important, complicated or difficult letter-or-visit matters, and the hearing shall be open to the public to ascertain the facts and clearly distinguish the responsibilities through inquiry, debate, appraisal or judgment by a collegiate group. The people's government of a province, autonomous region, or municipality directly under the Central Government shall respectively prescribe the scope of hearings, presiding officer, participants, procedures and other things.

Article 32 Through investigation and verification, the administrative organ which has the power to handle the letter-or-visit matter presented by a letter-writer or visitor shall make the following decisions according to the relevant laws, regulations, rules and other provisions and give a written reply to the letter-writer or visitor:

(1) to support the request if it is based on clear facts and conforms to laws, regulations, rules and other provisions;

(2) to make an ample explanation to the letter-writer or visitor if the request is reasonable but lacks legal basis; or

(3) not to support the request if it is not based on facts or does not conform to laws, regulations, rules or other provisions.

Where the administrative organ which has the power to handle the matter decides to support the request according to the provisions of Item (1) of the preceding paragraph, it shall urge the relevant organs or units to execute its decision.

Article 33 The matter presented by a letter-writer or visitor shall be handled within 60 days from the date it is accepted. If the matter is complicated, the time limit for handling it may be extended appropriately upon the approval by the responsible person of the administrative organ concerned, but the period extended shall not exceed 30 days, and the letter-writer or visitor shall be notified of the reasons for such extension. Where laws or administrative regulations provide otherwise, the provisions therein shall prevail.

Article 34 Where a letter-writer or visitor is not satisfied with the decision made by an administrative organ on the handling of the letter-or-visit matter, it may, within 30 days from the date of receipt of the written reply, request the administrative organ at the next higher level of the original administrative organ that has handled the matter to reexamine the matter. The administrative organ which has received the request for reexamination shall, within 30 days from the date of receipt of the request, make a decision after reexamination and give a written reply.

Article 35 Where a letter-writer or visitor is not satisfied with the decision made after reexamination, it may, within 30 days from the date of receipt of the written reply, request for review from the administrative organ at the next higher level of the reexamination organ. The administrative organ which has received the request for review shall, within 30 days from the date of receipt of the request, make a decision after review.

The review organ may, according to the second paragraph of Article 31 of these Regulations, hold a hearing, and the review decision made through hearing may be made known to the public according to law. The time needed for hearing shall not be calculated in the time limit prescribed in the preceding paragraph.

Where the letter-writer or visitor is not satisfied with the review decision and continues to lodge a complaint on the basis of the same facts and reasons, the departments or units for letters and visits of the people's governments at all levels and other administrative organs shall no longer accept the compliant.

Article 36 Where the department for letters and visits of the people's government at or above the county level finds that a relevant administrative organ comes under any of the following circumstances, it shall, without delay, urge such organ to handle the matter concerned and suggest that the said organ make improvement,:

(1) without justifiable reasons, failing to handle the letter-or-visit matter within the prescribed time limit;

(2) failing to give feedback on the results of the handling of the letter-or-visit matter as required;

(3) failing to handle the letter-or-visit matter according to the prescribed procedures;

(4) shifting the responsibility for handling the matter onto other departments, taking a perfunctory attitude, or delaying handling the letter-or-visit matter;

(5) failing to execute the decision on the matter; or

(6) needing urging for other reasons.

Upon receiving the suggestions for improvements, the administrative organ shall, within 30 days, give a feedback in writing on the improvements it has made. If the organ refuses to accept the suggestions, it shall explain the reasons.

Article 37 With regard to any policy problem raised by a letter-writer or visitor, the department for letters and visits of the people's government at or above the county level shall report it to the people's government at the corresponding level in a timely manner and make suggestions as to how to improve the policy and solve the problem.

Article 38 With regard to the staff members of an administrative organ who, in the work regarding letters and visits, cause serious consequences by shifting their responsibilities onto others, taking a perfunctory attitude, delaying handling of matters or practicing fraud, the department for letters and visits of the people's government at or above the county level may make suggestions to the administrative organ concerned to give them administrative sanctions.

Article 39 The department for letters and visits of the people's government at or above the county level shall, regularly, submit analytical reports on letters and visits to the people's government at the corresponding level with regard to the following matters:

(1) statistical data on the letter-or-visit matters accepted, the areas covered by the letter-or-visit matters, and the organs against which a relatively larger number of complaints are lodged;

(2) information about the matters which are transferred for handling or the handling of which is urged, and the suggestions about improvement accepted by different departments; and

(3) the policy suggestions made and accepted.

Chapter VI Legal Liability

Article 40 Where one of the following circumstances leads to the presentation of a letter-or-visit matter, which causes serious consequences, the individual directly in charge and the other individuals directly responsible therefor shall be given an administrative sanction according to the provisions of the relevant laws or administrative regulations; if the act constitutes a crime, they shall be investigated for criminal liability according to law:

(1) The lawful rights and interests of a letter-writer or visitor are infringed upon due to overstepping or abuse of power;

(2) An administrative organ infringes upon the lawful rights and interests of a letter-writer or visitor by doing nothing about what it shall do;

(3) The lawful rights and interests of a letter-writer or visitor is infringed upon due to incorrect application of laws or regulations or violation of statutory procedures; or

(4) The execution of the decision in support of the request of a letter-writer or visitor made by the administrative organ which has the power to handle the matter presented is refused.

Article 41 Where the department for letters and visits of the people's government at or above the county level fails to register the letter-or-visit matter, transfer the matter to another organ or assign another organ to handle the matter as required by regulations, or fails to perform the duties of supervising and urging the handling of the matter as it shall have done, the administrative organ at higher levels shall order it to make corrections; if serious consequences are caused, the individual directly in charge and the other individuals directly responsible therefor shall be given an administrative sanction according to law.

Article 42 Where the administrative organ responsible for accepting letter-or-visit matters, in violation of the provisions of these Regulations, comes under any of the following circumstances in accepting a letter-or-visit matter, the administrative organ at a higher level shall order it to make corrections; if serious consequences are caused, the individual directly in charge and the other individuals directly responsible therefor shall be given an administrative sanction according to law:

(1) failing to register the letter-or-visit matter it has received, as is required by regulations;

(2) refusing to accept the letter-or-visit matter which falls within the scope of its statutory functions and powers; or

(3) failing to inform in writing within the specified time limit the letter-writer or visitor of whether the letter-or-visit matter is accepted.

Article 43 Where the administrative organ which has the power to handle letter-or-visit matters, in violation of the provisions of these Regulations, commits any of the following acts in handling a letter-or-visit matter, the administrative organ at a higher level shall order it to make corrections; if serious consequences are caused, the individual directly in charge and the other individuals directly responsible therefor shall be given an administrative sanction according to law:

(1) shifting the responsibility onto another organ, taking a perfunctory attitude, or delaying handling the letter-or-visit matter, or failing to wind up the handling of the letter-or-visit matter within the statutory time limit; or

(2) failing to support the request which is based on clear facts and conforms to relevant laws, regulations, rules and other provisions.

Article 44 Where the staff member of an administrative organ, in violation of the provisions of these Regulations, divulges or transmits the materials of accusation or exposure and relevant information provided by a letter-writer or visitor to the individual or unit accused or exposed, he shall be given an administrative sanction according to law.

Where the staff member of an administrative organ, in handling a letter-or-visit matter , is rude in his style of work, thus intensifying contradictions and causing serious consequences, he shall be given an administrative sanction according to law.

Article 45 Where an administrative organ and its staff members, in violation of the provisions of Article 26 of these Regulations, conceal, make a false report of or delay reporting the important or urgent letter-or-visit matters or informatinn which may exert an influence on society, or incite another individual to do so, thus causing serious consequences, the individual directly in charge and the other individuals directly responsible therefor shall be given an administrative sanction according to law; if the act constitutes a crime, they shall be investigated for criminal liability according to law.

Article 46 Whoever retaliates against a letter-writer or visitor, thus constituting a crime, shall be investigated for criminal liability according to law; if the act is not serious enough to constitute a crime, he shall be given an administrative or disciplinary sanction according to law.

Article 47 Where a letter-writer or visitor violates the provisions of Article 18 or 20 of these Regulations, the staff member of the State organ concerned shall dissuade, criticize or educate him.

If such dissuasion, criticism or education fails, the public security organ shall warn or admonish the letter-writer or visitor or stop its act. If the letter-writer or visitor violates the laws or administrative regulations on assemblies, processions and demonstrations or if its act constitutes a violation of public security administration, the public security organ shall, according to law, take necessary measures to deal with the case on the spot and impose thereupon an administrative penalty for public security. If the act constitutes a crime, it shall be investigated for criminal liability according to law.

Article 48 Where a letter-writer or visitor makes up a story or distorts facts in an attempt to frame or bring a false charge against another individual, which constitutes a crime, he shall be investigated for criminal liability according to law. If the act is not serious enough to constitute a crime, the public security organ shall impose thereupon an administrative penalty for public security according to law.

Chapter VII Supplementary Provisions

Article 49 Social organizations, enterprises and institutions shall handle letters and visits with reference to these Regulations.

Article 50 The letter-or-visit matters presented by foreigners, stateless individuals or foreign organizations shall be handled with reference to these Regulations.

Article 51 These Regulations shall be effective as of May 1, 2005. The Regulations on Letters and Calls promulgated by the State Council on October 28, 1995 shall be repealed simultaneously.


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关于执行《中华人民共和国铁路法》中刑事罚则若干问题的解释

最高人民法院


关于执行《中华人民共和国铁路法》中刑事罚则若干问题的解释
最高人民法院



一、怎样理解《中华人民共和国铁路法》第六十条第一款的有关规定?《中华人民共和国铁路法》(以下简称《铁路法》)第六十条第一款规定:“违反本法规定,携带危险品进站上车或者以非危险品品名托运危险品,导致发生重大事故的,依照刑法第一百一十五条 的规定追究刑事
责任。企业事业单位、国家机关、社会团体犯本款罪的,处以罚金,对其主管人员和直接责任人员依法追究刑事责任。”(一)本款规定所称的“危险品”,是指具有爆炸、易燃、放射、毒害、腐蚀等性质,在运输、装卸和储存、保管过程中,容易造成人身伤亡和财产毁损而需要特别防护
的物品,其具体范围,按国务院及国务院主管部门的规定认定。(二)本款规定所称的“重大事故”,是指因非法携带上述危险品而发生爆炸、燃烧、泄露事件,致人重伤一人以上;致人轻伤三人以上;造成直接经济损失一万元以上;或者造成暂时中断铁路行车等严重后果的。行为人实施
本款规定的犯罪,致人死亡或者其它特别严重后果的,属于刑法第一百一十五条所规定的“后果特别严重”,从重处罚。
二、对携带炸药、雷管或者非法携带枪支子弹、管制刀具进站上车的行为,如何追究刑事责任?《铁路法》第六十条第二款规定:“携带炸药、雷管或者非法携带枪支子弹、管制刀具进站上车的,比照刑法第一百六十三条的规定追究刑事责任。”(一)携带炸药、雷管或者非法携带枪
支子弹、管制刀具进站上车构成犯罪的,应当定非法携带炸药、雷管、枪支子弹、管制刀具进站上车罪,依照刑法第一百六十三条规定适用刑罚。本罪为选择性罪名。分别实施携带炸药、雷管、枪支子弹或者管制刀具进站上车行为的,不实行 数罪并罚。行为人携带炸药、雷管进站上车,
导致发生重大事故的,适用《铁路法》第六十条第一款规定,依照刑法第一百一十五条的规定追究刑事责任。(二)非法携带炸药、雷管、枪支子弹、管制刀具进站上车,具有下列情形之一的,即可 构成本罪:1、携带炸药、雷管、子弹,在车站、列车上发生爆炸、燃烧,尚未造成严重
后果的;2、同时携带炸药、雷管,或者携带爆炸装置的;3、携带炸药一千克以上的;4、携带雷管五十枚以上的;5、非法携带枪支并子弹的;6、非法携带管制刀具二十把以上或者虽未达到规定的数量标准,但在车站或者列车上进行违法活动时使用,尚未构成其他犯罪的。具体认定
是否构成本罪,应当对行为人非法携带上列物品的数量、危害后果等情节综合分析。行为人携带炸药、雷管或者非法携带枪支子弹、管制刀具虽未达到规定的数量标准,但拒不交出的,也可以追究刑事责任;如果数量刚已达到规定的数量标准,但行为人进站上车后,能主动、全部交出的,
也可不以犯罪论处。(三)《铁路法》中所称“进站上车”是指进入铁路车站或者乘上客货列车。(四)行为人非法制造、收买枪支、弹药或者盗窃、抢夺枪支、弹药后,携带进站上车的,应当按非法制造、买卖枪支、弹药罪或者盗窃、抢夺枪支、弹药罪与非法携带炸药、雷管、枪支子弹
进站上车罪实行数罪并罚;行为人非法运输枪支、弹药并携带枪支、弹药进站上车的,应当以非法运输枪支、弹药罪定罪处罚。(五)非法携带管制刀具进站上车罪中“管制刀具”的范围,应当依照1983年公安部颁发的《对部分刀具实行管制的暂行规定》认定。
三、怎样理解《铁路法》第六十一条、第六十二条的有关规定?《铁路法》第六十一条规定:“故意损毁、移动铁路行车信号装置或者在铁路线路上放置足以使列车倾覆的障碍物,尚未造成严重后果的,依照刑法第一百零八条的规定追究刑事责任;造成严重后果的,依照刑法第一百一
十条的规定追究刑事责任。”《铁路法》第六十二条规定:“盗窃铁路线路上行车设施的零件、部件或者铁路线路上的器材,危及行车安全,尚未造成严重后果的,依照刑法第一百零八条破坏交通设施罪的规定追究刑事责任;造成严重后果的,依照刑法第一百一十条破坏交通设施罪的规定
追究刑事责任。”(一)《铁路法》第六十一条、第六十二条规定所称的“严重后果”,是指因行为人故意毁损、移动铁路行车信号装置或者在铁路线路上放置足以使列车倾覆的障碍物,或者盗窃铁路线路上行车设施的零件、部件、铁路线路上的器材,造成人身伤亡、重大财产毁损、中断

铁路行车等严重后果的。(二)行为人实施上述行为,虽未造成上述严重后果,但经铁路有关部门鉴定,足以危及行车安全的,应当依照刑法第一百零八条的规定追究刑事责任。
四、对聚众哄抢铁路运输物资的犯罪分子,如何追究刑事责任?《铁路法》第六十四条第一款规定:“聚众哄抢铁路运输物资的,对首要分子和骨干分子依照刑法第一百五十一条或者第一百五十二条的规定追究刑事责任”。(一)聚众哄抢铁路运输物资的,对首要分子和骨干分子应当
以抢夺罪,依照刑法第一百五十一条或者第一百五十二条的规定追究刑事责任,一般应从重处罚。犯罪分子如果在哄抢铁路运输物资过程中使用暴力或者以暴力相威胁,或者为窝藏赃物、抗拒逮捕、毁灭罪证而当场使用暴力或者以暴力相威胁的,应当以抢劫罪论处,从重处罚。(二)上述
犯罪中的“首要分子”,是指在聚众哄抢铁路运输物资的犯罪中,起组织、策划、指挥作用的犯罪分子;“骨干分子”,是指在聚众哄抢铁路运输物资的犯罪中,除首要分子之外,其他起主要作用的犯罪分子,如带头哄抢铁路运输物资的,哄抢铁路运输物资数量较大的犯罪分子等。
五、如何认定和处理在列车内实施抢劫的犯罪行为?《铁路法》第六十五条规定:在列车内抢劫旅客财物的,“依照刑法有关规定从重处罚”。(一)在列车内抢劫旅客财物,是抢劫罪中一种严重的犯罪形式。具体认定时,应当根据刑法有关抢劫罪的规定,结合铁路运输的特殊性,综
合考虑。凡在列车内,对旅客使用暴力、胁迫手段,如以语言威胁、暴露或者暗示携带有凶器或者依仗人多势众,对被害人施加精神压力等,强拿旅客财物或者以“借钱借物”为名,索取财物的,以及对旅客实行强买强卖,侵犯旅客财产权益的,均应以抢劫罪论处。(二)在列车内抢劫旅
客财物的,一般视为刑法第一百五十条第二款中规定的“情节严重”,适用该款的规定从重处罚;但情节较轻的,或者是从犯等,可以适用刑法第一百五十条第一款的规定处罚。
六、对倒卖旅客车票的行为,如何追究刑事责任?《铁路法》第六十六条规定:“倒卖旅客车票数额较大的,依照刑法第一百一十七条的规定追究刑事责任。以倒卖旅客车票为常业的,倒卖数额巨大或者倒卖集团的首要分子,依照刑法第一百一十八条的规定追究刑事责任。铁路职工倒
卖旅客车票或者与其他人员勾结倒卖旅客车票的,依照刑法第一百一十九条的规定追究刑事责任。”(一)倒卖旅客车票,包括高价、变相加价倒卖车票以及倒卖坐席、卧铺签字号及订购票凭证,非法经营数额在一千元以上,或者非法获利数额在五百元以上的,一般可视为“数额较大”;?
欠ň钤谝煌蛟陨希蛘叻欠ɑ窭钤谖迩г陨系模话憧墒游笆罹薮蟆薄5孤袈每统灯彼湮创锏健笆罱洗蟆钡钠鸬惚曜迹虻孤袈每统灯笔苤伟泊Ψ6我陨稀⒒蛘弑焕投萄淮我陨希侥昴谟值孤袈每统灯钡模灿ψ肪科湫淌略鹑巍#ǘ耙缘孤袈每统灯蔽
R怠保侵噶啻蔚孤袈每统灯保缘孤舫灯彼梦浠踊艋蛘呱钪饕丛吹摹#ㄈ┨分肮さ孤袈每统灯被蛘哂肫渌嗽惫唇岬孤袈每统灯钡模勒招谭ǖ谝话僖皇盘醯墓娑氨咎醯冢ㄒ唬ⅲǘ┫畹慕馐停又卮Ψ!F渌弥拔癖憷孤袈每统灯钡模灿Υ又卮Ψ!?
七、对违反《铁路法》的犯罪行为追究刑事责任时,在司法文书中如何引用《铁路法》和刑法的有关条款?(一)所定罪行属于《铁路法》新增加的罪名,或者《铁路法》对刑法所规定 的犯罪构成要件、处罚作了修改、补充规定的,应当同时引用刑法和《铁路法》的有关条款。(二
)《铁路法》中涉及刑事处罚的规定没有超出刑法有关规定的,不必引用《铁路法》。
八、如何执行本解释?本解释自发布之日起执行。解释发布前已处理的案件,不再变动;解释发布后,应当依照《铁路法》办理的案件,尚未办理或者正在办理的 ,一律适用本解释 。



1993年10月11日

关于开展“诚信建设”的思考

傅孙满


随着中国加入世贸组织,信用问题已成为国人共同关注的热点问题。应该更加关注诚信建设问题。
一、对诚信价值的认识
诚信并不是一个新生事物,古人就云:“言必信,行必果”。我国民法规定以诚实信用为基本原则,等等,无不向我们表明着一个事实:诚信是历史的选择,是社会发展的必然。一个行业的成功,乃至于一个社会的成功,诚信对其有着深远的意义。那么,诚信在市场经济中究竟有什么价值,有多大价值呢?诚信具有以下几方面价值:
(一)诚信是凝聚力。诚信,是为人立足的根本,也是社会发展的根本。一个人或一个行业,乃至一个社会,要想取得成功,必须以诚信为本。诚信既可以为行业树立良好的形象,也可以给人们创造一个舒适的工作环境,从而提高工作效率,打动和激励人们继续辛勤工作。通过开展诚信建设,可以有效地减少人与人间的隔阂,增进人与人之间的坦诚交流,从而在人们之间建立起良性的互动关系,形成强大的亲和力、凝聚力。这种亲和力、凝聚力,在你陷入困境的时候,在你走偏方向的时候,在你踌足不前的时候,就会自然而然地发挥出它的作用,成为指引你正确、勇敢前行的明灯。
(二)诚信是生产力。良好的信誉关系,在经济上就是一种价值利益。很多的品牌之所以具有巨大的无形资产,就是因为它代表着一种质量,代表着一种信誉,它能赢得别人的信赖,从而能有效地转化为经济利益,转化为一种再投入、再生产、再收益。很多的成功企业,都在内部建立起良好的诚信关系,从而降低了管理的成本,提高了合作效能和生产效率,成为企业蓬勃发展的动力。诚信因它天生所具有的降低交易成本、减少沟通环节、增进整体信用形象等性质,当然地成为了生产力的一个组成部分。
(三)诚信是制度保障。诚信虽然是一个抽象的概念,但它并不是虚无飘渺的事物,本质上,它是一种制度,是一种得到严格执行的制度。如果没有明示的并能得到严格执行的制度保障,则人可以言不信,行不果,那么社会也就无诚信可言,也就乱了套。因此,诚信的本质就是一种有可靠保障的秩序,这一保障,不是也不能由某人说了算,而应是来自于不因人而异、因人而废的制度。理解这一点,才能保证我们的诚信建设不偏向,不走过场。这对于我们开展诚信建设至关重要。
二、关于开展诚信建设的思考
诚信的价值是不言而喻的。但是在社会的发展过程中,我们无情地抛弃了诚信。从假烟假药、强买强卖到执行难,从排外到民工荒等问题,都是社会不诚信的表现和结果。近年来表现尤甚,一些企业恶性逃废银行债务、偷漏逃税、虚假出资、拖欠账款、欺诈坑骗,假冒伪劣、违法侵权,破坏市场信用的事件屡有发生。这既影响了企业的整体信用形象,使企业融资难度加大,市场交易成本增多,生产经营效益下滑,进一步发展受阻。同时,也扰乱了市场秩序,影响投资环境、市场环境的改善。“诚信是企业的生命”。没有信用,企业就会走向消亡。当前经济生活中存在着企业融资难、引才难、经营难和经济纠纷多、侵权投诉多、不正当竞争多的“三难”、“三多”问题,都向我们敲着警钟:我们正逐渐远离诚信。而种种不诚信现象的大规模发生,归结起来都只有一个本质的特征,那就是我们的法律、制度没有得到严格地执行,违背诚信没有受到应有、及时的惩罚,从而使人们陷入对法律、制度的恐慌而引起诚信的丧失。市场经济的发展内在地呼唤建立一个诚信的社会环境。开展诚信建设,应对症下药,才能收到良好效果。我个人认为,以下四方面是我们开展诚信建设所不可或缺的:
(一)要建立完善的社会制度。诚信建设,不只在一行一业,而是全社会的。只有全社会形成并遵守诚信秩序,诚信才可能存在。因此,诚信建设必须在全社会开展。当然,具体操作上可以由一些重点领域如生产流通领域、服务行业、中介组织、行政部门等首先抓起。正如前面所提及的,诚信的本质是一种得到严格执行、得到制度保障的秩序。因此,开展诚信建设的关键和首要,就在于建立健全各行各业的各种制度,使各行各业都生存于有法可依、有规可循的环境下,才可能使任何行业的人,可以依赖明示的、有保障的制度,而不是没有约束的个人信誉来行事,从而能在全社会构建制度性诚信。
(二)要提高全民的各项素质。“徒法不足以自行”。目前我们所面临的诚信危机,并不全在于我们没有相关的规定,而是这些规定被虚化,或被搁置,形同虚设。再好的制度,都是对人的,都必须由人去遵守,由人去执行。一旦一个社会遭受制度性的破坏后,这个社会将失去根本的保障,最终将积重难返而混乱不堪。我们看到,很多成功企业,都有一个共同的特征,那就是他们都有明确的经营理念和企业文化,有纪律严明、训练有素的员工队伍,有健全有效的管理制度,每个人都生活在这样的环境中,他们熟悉这个环境的规则并具有相应的素质去适应它。所以他们能够在对内对外两方面建立起良好的诚信关系。因此,诚信建设另一个重要的因素是要具有相应知识,能适应诚信需要的社会成员,包括行政执法人员、法官、律师、企业家、工人、农民等等各行各业的人。只有他们都明白自己是生活在诚信社会中,受着诚信规则的制约,并都有能力去适应这种游戏规则时,诚信才可能得到很好的实现。
(三)要建设一个符合诚信需要的政府。诚信建设,政府的责任最大,因为政府是立法机关的执行机构,担负着80%以上的法律法规的执行。政府部门严格有效的执法行为,是构成诚信的重要基础。就目前政府部门执法的状况而言,勿庸讳言,政府部门在人们的工作生活中并没有很好地履行自己的职能,因而也没能很好地发挥自己的作用,该管的可能因没有利益而不管,不该管的可能因利益巨大而争着管。这种荒唐的现象已不是屡见不鲜。毫无疑问,这样的政府行为本身就极大破坏了整个社会的诚信秩序,等于是我们的政府部门带头叫人们不要或不用遵循诚信规则。因此,建设一个适应诚信需要的“诚信政府”,是诚信建设的另一个重要组成部分。政府在诚信秩序建设中应做一个合格的政府。所谓的“合格”,我想至少有三方面的含义。一是政府的运行规则应以诚信为本。就是政府本身应职责明确并严格按确定的职责去运作,该管的管,不该管的不管。二是政府要在诚信建设中起指引作用。当人们要生活在诚信这一游戏规则里时,政府就有责任、有义务主动地去发挥自己的指引作用,因为它掌握着80%以上法律法规的执行。而这些法律法规又是与各行各业的生产生活息息相关的,如果政府没能很好地执行,则意味着将把各行各业引入一个不遵循制度的环境。所以政府在扮演合格的角色时就意味着它要发挥指引作用。三是政府必须是强有力的政府。作为前两方面因素的进一步要求,合格的政府要自觉维护执法秩序,自觉维护自己尊严。这一尊严,就来自于它本身的严格执法、热情服务,来自于它和公众建立的透明的、可沟通的良好关系。
(四)要有一套只服从法律的司法体系。所有的制度性秩序,具有最高效力的是法律秩序,因为法律秩序是由国家强制力保证实施。有什么样的法律秩序就有什么样的诚信秩序,遵守法律就是遵循诚信,诚信建设最终的保障就是法律。而法律自身的保障则需要实现司法独立,这样才能保证各种制度性秩序的遵守在司法中得到检验和落实。从我国的实践看,目前我们在这方面存在的问题就是司法机关严重依赖各级党政机关而无法独立,这就造成各种制度性秩序失去最终的,最有力的保障——法律保障。因此,诚信建设呼唤建立一套独立运行的司法体系,这样的体系的最根本特征是:它只服从法律。