, 2026, the Supreme People's Court made a final judgment on the anti-monopoly lawsuit of a provincial cement association, rejecting all the appeal requests of the association and maintaining the original punishment results. This case has also become an important reference for the anti-monopoly field of the domestic cement industry association. According to
the data, in 2022, under the guidance of the State Administration of Market Supervision and Administration, the Shaanxi Provincial Market Supervision and Administration, in accordance with the Anti-monopoly Law, Shaanxi Cement Association organizes Yaobai Special Cement Group Co., Ltd., Shaanxi Jinyu Jidong Cement Economic and Trade Co., Ltd., Jidong Heidelberg (Jingyang) Cement Co., Ltd., Jidong Heidelberg (Fufeng) Cement Co., Ltd., Shaanxi Shengwei Building Materials Group Co., Ltd., Tongchuan Shengwei Building Materials Co., Ltd., Shaanxi Ecological Cement Co., Ltd., Liquan Conch Cement Co., Ltd., Ganxian Conch Cement Co., Ltd., Shaanxi Tongchuan Phoenix Building Materials Co., Ltd., Baoji Zhongxi Jinlinghe Cement Co., Ltd., Thirteen cement enterprises of Baoji Zhongxi Fenghuangshan Cement Co., Ltd. and Qianyang Conch Cement Co., Ltd. have reached and implemented monopoly agreements to impose administrative penalties for their illegal acts, ordering the parties to stop their illegal acts and imposing a total fine of about 4.
The Shaanxi Provincial Market Supervision and Administration Bureau formally filed an investigation into the Shaanxi Cement Association and the cement enterprises involved. During this period, on-site investigation was conducted in accordance with the law, relevant personnel were inquired, relevant documents were consulted and copied, and a large number of evidence materials were obtained. Investigation and evidence collection were extensively carried out for relevant enterprises in the upstream and downstream of the cement industry. Statements and opinions of the parties were heard many times to protect their legitimate rights.
After investigation, from July 2017 to March 2019, the cement enterprises involved in the case discussed and agreed on the selling price of cement products many times in the activities of industry meetings, gatherings and WeChat chats organized or spontaneously organized by Shaanxi Cement Association, and then implemented the same or similar price increases at a unified time. The investigation shows that the above-mentioned illegal acts exclude and restrict the competition in the cement market in Guanzhong area of Shaanxi Province, destroy the market order of fair competition in the building materials industry, and damage the interests of consumers and the public. The above acts of the enterprises involved in the case violate the provisions of Article 13 of the Anti-monopoly Law that "operators with competitive relations are prohibited from reaching the following monopoly agreements: (1) fixing or changing commodity prices", and the above acts of Shaanxi Cement Association violate the provisions of Article 16 of the Anti-monopoly Law that "industry associations shall not organize operators of the industry to engage in monopolistic acts prohibited by this chapter". The full text of
the judgment is as follows:
Administrative Judgment
of the Supreme People's Court
of the People's Republic of China (2025) Supreme Fa Zhi Xing Zhong No.
849 Appellant (plaintiff in the first instance): Cement Association of a certain province.
Legal representative: Li.
Entrusted agent ad litem: Sun Shaosong, lawyer of Beijing Guantao Law Firm.
Entrusted agent ad litem: Guan Yue, lawyer of Beijing Guantao Law Firm.
Appellee (defendant in the first instance): State Administration for Market Supervision and Administration.
Entrusted agent ad litem: Jia Menghan, a staff member of the Bureau.
Entrusted agent ad litem: Dong Jie, a staff member of the Bureau.
The Appellant, a provincial cement association (hereinafter referred to as the Cement Association), and the Appellee, the State Administration of Market Supervision and Administration (hereinafter referred to as the General Administration of Market Supervision), were involved in an anti-monopoly administrative reconsideration case. To appeal to the Court against the administrative judgment (2024) Jing 73 Xing Chu No.9068 (hereinafter referred to as the first instance judgment) made by Beijing Intellectual Property Court (hereinafter referred to as the first instance court) on June 20, 2025. After filing the case on September 15, 2025, the Court formed a collegial panel according to law and held a public hearing on May 26, 2026. Sun Shaosong and Guan Yue, the entrusted litigation agents of the Appellant Cement Association, and Jia Menghan, the entrusted litigation agent of the Appellee General Administration of Market Supervision, attended the court to participate in the lawsuit. The case has now been tried and concluded. On June 28, 2022,
a provincial market supervision and administration Bureau (hereinafter referred to as a provincial and municipal supervision Bureau) issued administrative guidance No.1 (hereinafter referred to as the administrative guidance of the accused), which provided administrative guidance to the cement association, requiring the cement association to carry out comprehensive rectification according to the guidance, operate in accordance with the law and comply with the law. Establish and improve a long-term mechanism for fair participation in market competition, formulate a rectification plan, specify the rectification tasks and completion time limit, report to a provincial or municipal supervision Bureau before September 31, 2022 (note: SiC), and submit a self-inspection compliance report to a provincial or municipal supervision Bureau before September 31 each year (note: SiC) within three years from the date of receiving the administrative guidance of the defendant.
The Cement Association refused to accept the administrative guidance of the defendant, claiming that the administrative guidance of the defendant set up the obligation of rectification and reporting for the Cement Association, and explicitly required the Cement Association to implement it, which is a compulsory administrative act. On July 18, 2022, the Cement Association applied to the General Administration of Market Supervision for administrative reconsideration, requesting the revocation of the administrative guidance of the defendant. According to the General Administration of
Market Supervision, the accused administrative guidance document belongs to the administrative guidance document, which is not mandatory and does not infringe upon the legitimate rights and interests of the Cement Association. The application for reconsideration of the Cement Association does not meet the acceptance conditions stipulated in Article 28 of the Regulations on the Implementation of the Administrative Reconsideration Law of the People's Republic of China (hereinafter referred to as the Regulations on the Implementation of the Administrative Reconsideration Law), which came into effect on August 1, 2007. According to the provisions of Item 2, Paragraph 1, Article 48 of the Regulations for the Implementation of the Administrative Reconsideration Law, the General Administration of Market Supervision issued an administrative reconsideration decision (hereinafter referred to as the respondent's reconsideration decision) on March 21, 2023, rejecting the application for administrative reconsideration of the Cement Association.
The Cement Association refused to accept the administrative guidance and the reconsideration decision of the defendant, and filed an administrative lawsuit with the court of first instance on April 13, 2023. The court of first instance held that the respondent's reconsideration decision was a procedural rejection decision made on the grounds that the application for reconsideration did not meet the acceptance conditions stipulated in Article 28 of the Regulations for the Implementation of the Administrative Reconsideration Law, and that the dispute involved was a general administrative case and did not fall within the jurisdiction of the court of first instance. On May 18, 2023, the Court of First Instance issued (2023) Jing 73 Xing Chu No.8517 Administrative Ruling, which ruled that the lawsuit of the Cement Association was not accepted. The Cement Association refused to accept and appealed to the Court. During the court's hearing of the case, the Cement Association applied to the court for withdrawal of the appeal on the grounds that it had filed an administrative lawsuit against the respondent's reconsideration decision alone. On May 20, 2024, the Court issued an administrative ruling (2023) No.838 of the Supreme Law, which allowed the Cement Association to withdraw its appeal.
Cement Association filed an administrative lawsuit to the court of first instance on May 27, 2024, requesting: 1. Revocation of the respondent's reconsideration decision made by the General Administration of Market Supervision; 2. Facts and reasons: (I) Cement Association's application for reconsideration meets the statutory acceptance conditions. Although the defendant's administrative guidance is called administrative guidance, it has the intention to produce administrative legal relations, which has a practical impact on the rights of the Cement Association, and meets the acceptance conditions of administrative reconsideration stipulated in Items 1, 2 and 11 of Article 6 of the Administrative Reconsideration Law of the People's Republic of China (hereinafter referred to as the Administrative Reconsideration Law) amended in 2017. (2) The defendant's administrative guidance is an administrative penalty in the name of administrative guidance, which restricts the autonomy of the cement association. Without any procedures, a provincial and municipal supervisory Bureau directly put forward more than ten requirements, such as regular compliance training, establishment of compliance control system and regular reporting of compliance, and asked the cement association to formulate a rectification plan, clarify the rectification task and completion time limit. In addition to administrative punishment, a provincial and municipal supervisory Bureau violated the legal principle of punishment, exceeded its legal authority and procedures, and imposed new obligations on the cement association through administrative guidance, thus violating the legitimate rights and interests of the cement association. (3) The main evidence on which the respondent's reconsideration decision is based is insufficient. After filing the application for administrative reconsideration, the Cement Association twice applied to the reconsideration organ for consulting the written reply and evidence materials of a provincial and municipal supervision Bureau, but they were not approved. It should be deemed that the provincial and municipal supervision Bureau did not submit the written reply and evidence materials. Therefore, the defendant's administrative guidance lacked evidence support, and the General Administration of Market Supervision rejected the application for reconsideration. (4) Maintaining the respondent's reconsideration decision will produce adverse demonstration effects. If it is determined that the reconsideration organ can reject the reconsideration request on procedural grounds, it will deprive the administrative counterpart of the right to reconsideration, resulting in the reconsideration organ evading judicial review, thus producing adverse demonstration effects. The State Administration of
Market Regulation argued in the first instance that the facts of the respondent's reconsideration decision were clear, the applicable laws and regulations were correct, and the procedure was lawful. The cause of action of the Cement Association cannot be established, and the request is rejected according to law.The
court of first instance found the following facts:
On June 28, 2022, a provincial and municipal supervisory Bureau issued a [2022] No.6 Decision on Administrative Penalty (hereinafter referred to as No.6 Decision on Penalty). In violation of Article 16 of the Anti-monopoly Law of the People's Republic of China (hereinafter referred to as the Anti-monopoly Law) implemented in 2008, the Cement Association was ordered to stop its illegal activities and a fine of 500000 yuan was imposed.
On the same day, a provincial and municipal supervision Bureau issued an administrative guidance letter to the defendant. The secretary of the administrative guidance said:
"According to the principle of combining punishment with education in accordance with the Administrative Punishment Law, and in combination with the problems found in the investigation, we hereby put forward the administrative guidance opinions. Your unit should carry out comprehensive rectification according to the guidance opinions and operate in accordance with the law." Establish and improve a long-term mechanism for fair participation in market competition, strictly abide by the anti-monopoly law, and earnestly safeguard the order of fair competition.
First, earnestly study the anti-monopoly regulatory policy. 1.2.
Second, comprehensively regulate their own competitive behavior. 3.4.5
III. Improve the internal competition compliance system. 6.7.8
IV. Maintain good competition order in the industry. 9.10.11.12.
You shall formulate the rectification plan according to the above requirements, specify the rectification tasks and the time limit for completion, report to this organ before September 31 (note: SiC), and submit the self-inspection compliance report to this organ before September 31 (note: SiC) every year within three years from the date of receipt of this instruction. In
the first instance, the Cement Association confirmed that it had not fulfilled its administrative guidance, and that a provincial and municipal supervisory Bureau had not taken any compulsory measures against it, nor had it required it to fulfill its corresponding obligations. The court of
first instance held that:
(1) With regard to whether the defendant's administrative guidance is an act of administrative guidance or an act
of administrative punishment, first of all, the defendant's administrative guidance is clearly stated as "putting forward administrative guidance opinions", although the expression of "should" is adopted. However, it did not mention that the Cement Association's rejection of the guidance set out in the respondent's administrative instructions would have adverse consequences or create corresponding obligations. The defendant's administrative guidance did not adjust the rights and obligations of the Cement Association, did not have a practical impact on the rights and obligations of the Cement Association, and did not have compulsory force, which was in line with the characteristics of the administrative guidance act stipulated in Article 3 of the Administrative Guidance Rules for Industry and Commerce (hereinafter referred to as the Administrative Guidance Rules). Secondly, administrative punishment refers to the act of administrative organs punishing citizens, legal persons or other organizations who violate the administrative order in accordance with the law by impairing their rights and interests or increasing their obligations. It can be seen that the act of administrative penalty is an act that adjusts the rights and obligations of the administrative counterpart, or impairs the rights and interests of the administrative counterpart, or imposes corresponding obligations on the administrative counterpart. Since the defendant's administrative guidance did not mention the possible adverse consequences of the cement association's refusal to perform the guidance, and in the case of the cement association's failure to actually perform, it did not result in the imposition of obligations or the impairment of rights and interests. Therefore, the claim of the Cement Association that the administrative guidance of the defendant is called administrative guidance but actually administrative punishment cannot be established.
(2) On whether the administrative guidance of the defendant falls within the scope
of administrative reconsideration, first of all, the administrative guidance of the defendant belongs to administrative guidance rather than administrative penalty, and does not constitute the administrative penalty decision stipulated in Article 6, paragraph 1, of the Administrative Reconsideration Law; Secondly, the defendant's administrative guidance does not involve administrative compulsory measures to restrict personal freedom or seal up, seize or freeze property, nor does it involve other administrative compulsory measures, which does not constitute the situation stipulated in Article 6, paragraph 2, of the Administrative Reconsideration Law; Thirdly, the defendant's administrative guidance did not set rights and obligations for the cement association or cause the change or loss of the rights and obligations of the cement association, and there was no infringement of the legitimate rights and interests of the cement association, which did not constitute the situation stipulated in Item 11 of Article 6 of the Administrative Reconsideration Law. Therefore, the General Administration of Market Supervision of the Cement Association shall accept the cause of action of this case in accordance with the provisions of Article 6, Items 1, 2 and 11 of the Administrative Reconsideration Law, which cannot be established.
In addition, the court of first instance held that although the defendant's reconsideration decision used the expression "does not infringe upon the legitimate rights and interests of the applicant", it can be seen from the context that the General Administration of Market Supervision is examining whether the defendant's administrative guidance belongs to the administrative guidance act, and on this basis, it is determined that the administrative guidance act does not belong to the administrative reconsideration. It did not make substantive identification and treatment of the administrative guidance of the defendant. Accordingly, the court of first instance held that the statement in the respondent's reconsideration decision that the respondent's administrative guidance "does not infringe upon the legitimate rights and interests of the applicant" was indeed inappropriate, but the conclusion in the respondent's reconsideration decision that the respondent's administrative guidance does not fall within the scope of administrative reconsideration was correct. In accordance with the provisions of Article 69 of the Administrative Procedure Law of the People's Republic of China, the court of
first instance ruled that the plaintiff's claim of a provincial cement association was rejected. The case acceptance fee is 100 yuan, which is borne by the plaintiff's provincial cement association.
Cement Association refused to accept the judgment of the first instance and appealed to the court, requesting: 1. Revoke the judgment of the first instance and the decision of the defendant's reconsideration; 2. Facts and reasons: (I) Although the defendant's administrative guidance is called administrative guidance, it has the intention of administrative legal relationship, which has a practical impact on the rights of Cement Association. Specifically, a provincial and municipal supervisory Bureau violated the voluntary principle of administrative guidance, failed to inform the administrative counterpart that he had the right to choose independently, and imposed new obligations on the cement association through the administrative guidance of the defendant, improperly expanded the means of administrative punishment, imposed punishment on the cement association in disguised form, violated the legitimate rights and interests of the administrative counterpart, and essentially constituted a new administrative punishment. Even if it is determined that the accused administrative guidance is an administrative guidance act, but the administrative counterpart has initiated administrative reconsideration, that is to say, it refuses to give guidance, according to the provisions of Article 15 of the Administrative Guidance Rules, the accused administrative guidance should also be revoked. (2) The judgment of the first instance wrongly determined that the administrative guidance of the defendant did not have compulsory force. Even if the defendant's administrative guidance does not stipulate the adverse consequences of the administrative counterpart's refusal to perform, it clearly produces an administrative legal relationship by setting additional obligations. The defendant's administrative guidance adopts the expression of "all obligations should be made", sets the obligation of reporting the performance, and completely excludes the space for the administrative counterpart to determine the relationship between rights and obligations based on voluntary choice, so it is sufficient to determine that the defendant's administrative guidance has compulsory force. (3) The judgment of the first instance wrongly determined that the respondent's reconsideration decision did not identify and deal with the entity of the respondent's administrative guidance. The defendant's reconsideration decision considers that the defendant's administrative guidance does not infringe the legitimate rights and interests of the Cement Association, which is sufficient to show that the defendant's reconsideration decision has made a substantive determination of the defendant's administrative guidance. In this case, the defendant's reconsideration decision shall be revoked together with the defendant's administrative guidance if the defendant's administrative guidance is substantially maintained on the grounds of procedural rejection without a legal reconsideration procedure. (4) There are procedural violations in the court of first instance. The Respondent's Reply (hereinafter referred to as the Reply) submitted by the General Administration of Market Supervision as evidence to the Court of First Instance lists three annexes. The Cement Association applied for the attachment of the reply, but the court of first instance did not grant permission, depriving the parties of the right of cross-examination. The General Administration of
Market Supervision argued that the facts of the respondent's reconsideration decision were clear, the applicable laws and regulations were correct, and the procedure was lawful. The appeal request of the Cement Association can not be established. Request that the appeal be dismissed in accordance with the law. Specific reasons: (1) The administrative guidance of the defendant is not compulsory. Although the administrative guidance of the defendant put forward the task of rectification and the deadline for completion, it only played a reminder and guidance role. A provincial and municipal supervisory Bureau did not take any compulsory measures because the cement association refused to perform. (2) The administrative guidance of the defendant has been terminated. The administrative guidance of the defendant specifies that the rectification period is three years, and now it is terminated due to the expiration of the rectification period. During the second instance of
this case, neither party submitted new evidence. After trial,
the court finds that the facts confirmed by the court of first instance are true, and the court confirms them.
The Court holds that this case is an anti-monopoly administrative reconsideration. On July 18, 2022, the Cement Association applied to the General Administration of Market Supervision for administrative reconsideration, and on March 21, 2023, the General Administration of Market Supervision made a decision on the appeal for reconsideration. Therefore, the Administrative Reconsideration Law amended in 2017 (from January 1, 2018 to December 31, 2023) and the Regulations on the Implementation of the Administrative Reconsideration Law implemented on August 1, 2007 (from August 1, 2007 to June 30, 2026) should be applied in this case; The court of first instance accepted this case on May 27, 2024, so this case should be applied to the Administrative Procedure Law amended in 2017 and implemented on July 1, 2017 and the Interpretation of the Supreme People's Court on the Application of the Administrative Procedure Law of the People's Republic of China (hereinafter referred to as the Judicial Interpretation of the Administrative Procedure Law) implemented on February 8, 2018.
According to the pleadings of both parties and the basic facts of this case, the focus of the dispute in the second instance of this case is: (1) the legal nature of the defendant's administrative guidance and whether it falls within the scope of administrative reconsideration; (2) whether the defendant's reconsideration decision substantially maintains the defendant's administrative guidance; (3) whether the court of first instance has procedural violations. Article 28 of the Regulations for the Implementation of the
Administrative Reconsideration Law stipulates: "An application for administrative reconsideration shall be accepted if it meets the following requirements: (1) There is a clear applicant and a respondent who meets the requirements;"; (2) The applicant has an interest in the specific administrative act; (3) The applicant has a specific claim for administrative reconsideration and the reasons therefor; (4) The application is filed within the statutory time limit; (5) The application falls within the scope of administrative reconsideration as prescribed in the Administrative Reconsideration Law; (6) The application falls within the scope of duties of the administrative reconsideration organ that has received the application for administrative reconsideration; (7) Other administrative reconsideration organs have not accepted the same application for administrative reconsideration, and the people's court has not accepted the administrative litigation brought by the same subject on the same fact.The
Cement Association claimed in the appeal that the name of the sued administrative guidance was administrative guidance, but in fact it was administrative punishment. The administrative organ violated the principle of voluntariness of administrative guidance, restricted the right of the administrative counterpart to choose independently, imposed punishment in disguised form, and infringed upon the legitimate rights and interests of the administrative counterpart. Therefore, the sued administrative guidance belongs to the scope of administrative reconsideration. The act of
administrative guidance is an act that the administrative organ, within the scope of its duties, guides the administrative counterpart to do or not to do a certain act voluntarily in order to achieve a specific administrative purpose by formulating advocacy and guiding documents, or by adopting non-mandatory ways such as demonstration, suggestion, advice, encouragement and advocacy. Generally speaking, administrative guidance does not directly create, change or eliminate rights and obligations for the administrative counterpart, and does not belong to administrative acts that produce mandatory legal effects, so it is usually not included in the scope of administrative reconsideration and administrative litigation. However, if an administrative organ, in the name of administrative guidance, in essence makes a mandatory declaration of intention that produces administrative legal relations, or carries out an act that in fact impairs the legitimate rights and interests of the administrative counterpart, the act has gone beyond the scope of administrative guidance and constitutes a specific administrative act that can be reconsidered and litigated. If the anti-monopoly administrative law enforcement agency makes a decision on administrative penalty for monopolistic acts, it may give administrative guidance to the object under investigation at the same time. If the main content of administrative guidance is the restatement of prohibitive or compliance obligations clearly stipulated in anti-monopoly laws, regulations, rules and other normative documents, the purpose is to persuade the guided object to abide by the relevant provisions consciously by means of reminders and suggestions, even if the guidance uses "no" and "should". Nor can it be taken for granted that the guiding opinions set, change or eliminate specific rights and obligations for the guided objects, thus producing mandatory legal effects. To determine whether the sued administrative guidance is an act of administrative guidance, we should take its specific content as the basis, comprehensively consider whether the administrative guidance contains the true meaning of the administrative legal relationship, whether the administrative counterpart actually enjoys the right to choose independently, and whether it objectively produces mandatory legal effects. In this case, the primary issue in dispute between the two parties is the legal nature of the administrative guidance of the defendant, that is, whether the administrative guidance of the defendant belongs to the administrative guidance act. In this regard, the Court's analysis is as follows:
First of all, there is no true meaning of the administrative legal relationship in the content of the defendant's administrative guidance. Although the defendant's administrative guidance has put forward twelve opinions to the Cement Association, some of which use the words "shall not" and "shall", and require the Cement Association to submit self-inspection compliance reports regularly, the above opinions are mainly a restatement of the anti-monopoly law and the provisions of the Anti-monopoly Compliance Guidelines for Operators. It aims to persuade the Cement Association and its employees to consciously abide by the requirements of the Anti-monopoly Law and relevant regulations, rules and other normative documents by means of reminders and suggestions, and does not mean to set, change or eliminate specific rights and obligations for the Cement Association. The Court does not support the Cement Association's appeal claim that the defendant's administrative guidance imposes new obligations on it, which lacks factual and legal basis.
Secondly, the defendant's administrative guidance does not restrict the administrative counterpart's right to choose independently. The first paragraph of Article 9 of the Administrative Guidance Rules stipulates: "Administrative guidance may be implemented on its own initiative according to its functions and powers, or upon the application of the administrative counterpart." Article 15 of the Rules stipulates: "The administrative guidance shall be terminated under any of the following circumstances: (1) The administrative counterpart explicitly refuses the administrative guidance, withdraws the application or requests the suspension of the administrative guidance.." The implementation of administrative guidance includes both active implementation according to authority and application for implementation according to the administrative counterpart. For the administrative guidance that is carried out on its own initiative according to its functions and powers, the right of the administrative counterpart to choose independently can be embodied in the fact that the administrative organ obtains the consent of the administrative counterpart before making the administrative guidance act, or in the fact that the administrative counterpart has the right to refuse after making the administrative act. The Cement Association claimed that the defendant's right to choose was restricted by the defendant's administrative guidance only on the grounds that a provincial and municipal supervision Bureau had not obtained its consent before the defendant's administrative guidance was made. The appeal claim lacked legal basis and was not supported by the Court.
Thirdly, the defendant's administrative guidance has no mandatory legal effect. The defendant's administrative guidance did not specify the adverse consequences of the cement association's refusal to accept the guidance recommendations, nor did a provincial or municipal supervisory Bureau take any compulsory measures because the cement association did not accept the guidance recommendations. Therefore, it is not improper for the first instance judgment to determine that the defendant's administrative guidance has not produced mandatory legal effects. The appeal reason of the Cement Association that the administrative guidance of the defendant is mandatory cannot be established, and the Court does not support it.
To sum up, the administrative guidance of the defendant is an administrative guidance act of a provincial and municipal supervision Bureau to persuade the cement association and its staff to consciously abide by the provisions of the Anti-monopoly Law by means of reminders and suggestions, which does not restrict the cement association's right to choose independently, nor does it have mandatory legal consequences. The judgment of the first instance found that the defendant's administrative guidance was an act of administrative guidance, and then found that it did not fall within the scope of administrative reconsideration, which was not improper, and the court confirmed it.
(2) Article 43 of the Regulations on the Implementation of the
Administrative Reconsideration Law stipulates: "In accordance with the provisions of Item (1) of Paragraph 1 of Article 28 of the Administrative Reconsideration Law, the facts of the specific administrative act are clear, the evidence is conclusive, the basis for application is correct, and the procedure is lawful." If the content is appropriate, the administrative reconsideration organ shall decide to maintain it. The first paragraph of Article 48 of the Regulations stipulates: "In any of the following circumstances, the administrative reconsideration organ shall decide to reject the application for administrative reconsideration: (1) The applicant considers that the administrative organ has failed to perform its statutory duties to apply for administrative reconsideration, and the administrative reconsideration organ finds that the administrative organ has no corresponding statutory duties or has performed its statutory duties before accepting the application;"; (2) After accepting the application for administrative reconsideration, it is found that the application for administrative reconsideration does not meet the acceptance conditions stipulated in the Administrative Reconsideration Law and these Regulations. The only reason for the
Cement Association to appeal and claim that the respondent's reconsideration decision substantially upholds the respondent's administrative guidance is that the General Administration of Market Supervision considers that the respondent's administrative guidance does not infringe the legitimate interests of the Cement Association.
The Court holds that the defendant's reconsideration decision States that the General Administration of Market Supervision made the defendant's reconsideration decision in accordance with Article 48, paragraph 1, paragraph 2, of the Regulations on the Implementation of the Administrative Reconsideration Law, not in accordance with Article 43 of the Regulations. Although the defendant's reconsideration decision uses the expression of "not infringing the legitimate rights and interests of the applicant", it can be seen from the context that the expression is still based on whether the defendant's administrative guidance is an administrative guidance act, rather than a substantive review of the defendant's administrative guidance. It is not improper for the General Administration of Market Supervision to reject the application for reconsideration of the Cement Association on the grounds that it is not mandatory and does not infringe upon the legitimate interests of the administrative counterpart, based on the fact that the sued administrative guidance is an administrative guidance act. In the judgment of the first instance, the statement that the defendant's administrative guidance "does not infringe upon the legitimate rights and interests of the applicant" in the defendant's reconsideration decision is indeed inappropriate and biased. The Cement Association's appeal claim that the respondent's reconsideration decision substantially maintains the respondent's administrative guidance lacks factual and legal basis, and the Court does not support it.
(3) Whether there is a procedural violation
in the court of first instance. The Cement Association claims that the court of first instance did not allow it to investigate and collect the annex of the reply and deprived it of the right of cross-examination, which is a procedural violation. Article 39 of the judicial interpretation of the
Administrative Procedure Law stipulates: "If a party applies for investigation and collection of evidence, but the evidence is not related to the facts to be proved, is meaningless to prove the facts to be proved, or is not otherwise necessary for investigation and collection, the people's court shall not grant permission." Accordingly, the evidence applied for investigation and collection by the parties in administrative litigation should be related to the facts to be proved involved in the dispute focus of the case, which has an impact on the determination of the facts of the case, and the evidence in the case can not prove that the facts to be proved are necessary for investigation and collection. The focus of the dispute in this case is the legal nature of the defendant's administrative guidance and whether it falls within the scope of administrative reconsideration. Attached to the reply that the Cement Association applied to the court of first instance for investigation and collection are the evidence and internal procedure documents of the No.6 penalty decision and the administrative guidance of the defendant. The No.6 penalty decision and the administrative guidance of the defendant are two relatively independent administrative acts. The Cement Association did not fully explain the evidence applied for collection. Especially when the evidence related to the No.6 penalty decision is related to the facts to be proved in the focus of the dispute in this case, it is not improper for the court of first instance to refuse to grant permission to its application for investigation and evidence collection. Moreover, the existing evidence in this case is sufficient to prove the basic facts of the case, and the evidence collected by the Cement Association for investigation is not necessary. The appeal reason of the Cement Association for the existence of procedural violations in the court of first instance cannot be established, and the Court does not support it.
To sum up, the appeal request of the Cement Association cannot be established and should be rejected; the first instance judgment should be maintained because the facts are clear, the applicable law is correct, and the judgment result is not improper. In accordance with Paragraph 1, Paragraph 1, Article 89 of the Administrative Procedure Law of the People's Republic of China, the judgment is as follows:
The appeal is rejected and the original judgment is upheld.
The first instance case acceptance fee is 50 yuan, which is borne by a provincial cement association. The second instance case acceptance fee is 50 yuan, which is borne by a provincial cement association. A provincial cement association has paid 100 yuan in advance and should refund 50 yuan.
This judgment is final.
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