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The State Administration of Foreign Exchange
Reply of the State Administration of Foreign Exchange on Whether the Regulations of the People’s Republic of China on Foreign Exchange
Administration Provides Preposition of Reconsideration
HuiFu [2000] No.29
January 27, 2000
Fuzhou Foreign Exchange Administrative Bureau:
The document FuHui [2000] No.2 has been received, now reply as follow:
The document FuHui [2000] No.2 has been received. Please find our reply as follows:Pursuant to Paragraph 1, Article 16 of the Law
of the People’s Republic of China on Administrative Reconsideration, in cases where citizens, legal persons or other organizations
refuse to accept the specific administrative action of a certain administrative authority, they may apply for preposition of reconsideration,
that is, to go through administrative reconsideration first, and then to institute administrative litigation to the People’s Court
only when refusing to accept the reconsideration decision, provided that the relevant Chinese laws and regulations contain explicitly
made stipulations in this regard.
The Regulations on Foreign Exchange Administration, promulgated by the State Council in Decree No.193 as of January 29, 1996, and
amended in Decree No.211 as of January 14, 1997, is competent to provide for preposition of reconsideration.
Article 50 of the Regulations on Foreign Exchange Administration dedicates three sentences to stipulations on the right of the party
concerned for administrative reconsideration, on the length of time for the competent authority to conduct administrative reconsideration,
and on the right of the party concerned for administrative reconsideration respectively. With the middle sentence on the length of
time allowed for administrative reconsideration being left out, the remaining two sentences, one on the right of the party concerned
for administrative reconsideration and the other on the right of the party concerned for administrative litigation, combine to form
a stipulation on preposition of reconsideration. Pursuant to this Article, the premise for the party concerned to exercise the right
for administrative review is its refusal to accept the relevant foreign exchange authority’s penalty decision, while that for administrative
litigation is a refusal to accept the reconsideration decision by the foreign exchange authority at the next higher level. The use
of “may” rather than “shall” in this Article means that the party concerned may exercise or give up its rights for administrative
reconsideration and administrative litigation, rather than that the party concerned may choose between an administrative reconsideration
and an administrative litigation.
Therefore, Article 50 of the Regulations on Foreign Exchange Administration clearly defines the procedures for preposition of reconsideration.
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