民航局


民航系统审计事项的报告和审定的试行办法

1989年7月27日，民航局

第一条 为了促进民航审计工作的制度化、规范化，提高审计工作质量，根据《中华人民共和国审计条例》和审计署有关规定，制定本试行办法。
第二条 各级审计机构应当根据上级审计机关和本单位领导的要求，确定审计重点，编制项目计划，也可根据实际需要，经上级审计机关或主管领导批准安排计划外审计项目或审计调查项目。
第三条 进行审计前，应当向被审计单位发出“审计通知书”。“审计通知书”的主要内容包括：审计的内容、范围、方式、时间、审计组负责人及审计组成员姓名。
第四条 审计组进行审计后，应当及时写出审计报告。审计报告的主要内容包括：
（一）审计的内容、范围、方式、时间及有关情况的简要概括；
（二）与审计事项有关的事实及查出的问题；
（三）初步结论、处理意见和建议；
（四）依据的法律、法规和政策的规定。
审计组负责人对审计报告的内容负责。
第五条 审计组的审计报告，在提交审计局（处、科）以前应征求被审计单位的意见。也可以经审计局（处、科）研究后由审计组征求被审计单位的意见。
第六条 审计组向审计局（处、科）提交审计报告的同时，应附下列资料：
（一）审计报告中所列事实的证明材料；
（二）被审计单位对审计报告的书面意见。
第七条 审计局（处、科）对审计报告进行全面审查，审查的主要内容包括：
（一）审计的程序是否合法；
（二）事实是否清楚，有无重大遗漏；
（三）对被审计单位不同意见的说明；
（四）其他有关资料。
负责审查或者组织审查的审计局（处、科）负责人对报告中的上述审查内容负责。
第八条 审计局（处、科）对审计报告审查后，应按下列情况分别处理：
（一）事实不清，证明材料不足，或者有重大遗漏的，要求审计组核实或者进行补充调查、检查；
（二）证明材料充分、确凿，而审计报告未能充分反映的，退回审计组修改审计报告；
（三）事实清楚，证明材料充分、确凿的，经有关部门会签后送交主管领导审定。
第九条 审计报告和初步结论及处理意见由主管领导审定。对重大审计事项的审计报告，主管领导认为必要时，决定召开办公会议或联席会议审定。
第十条 审计组根据审定的意见，修改或写出审计结论和决定，经审计局（处、科）审核后，送交主管领导签发。
第十一条 审计结论和决定的主要内容包括：
与审计事项有关的事实，对审计事项的结论，经济处理、处罚的决定，依据的法律、法规和政策。
第十二条 审计结论和决定连同审计报告发送被审计单位执行，同时报送上级审计机关。
第十三条 被审计单位对审计结论和决定不服的，在收到审计结论和决定之日起十五日内可向上一级审计机关申请复审。复审事项的报告和审定，参照本办法办理。
第十四条 经批准的计划内审计调查事项以及计划外审计调查事项进行完毕后，写出报告，经审计局（处、科）审查后，送交主管领导审定。对重大审计调查事项，主管领导认为必要时，决定召开办公会议或联席会议审定。审定后的审计调查报告送上级审计机关。
第十五条 审计调查中，如发现被调查单位有需要处理的违纪行为，应当按《审计条例》的规定进行审计并下达审计结论和决定。
第十六条 本办法自下发之日起试行。


Chapter VIII
Strengthening of the Multilateral System


Art. 23 of the DSU deals, as indicated by its title, with the “Strengthening of the Multilateral System”. Its overall design is to prevent WTO Members from unilaterally resolving their disputes in respect of WTO rights and obligations. It does so by obligating Members to follow the multilateral rules and procedures of the DSU. Art. 23 of the DSU reads:

“Strengthening of the Multilateral System
1. When Members seek the redress of a violation of obligations or other nullification or impairment of benefits under the covered agreements or an impediment to the attainment of any objective of the covered agreements, they shall have recourse to, and abide by, the rules and procedures of this Understanding.
2. In such cases, Members shall:
(a) not make a determination to the effect that a violation has occurred, that benefits have been nullified or impaired or that the attainment of any objective of the covered agreements has been impeded, except through recourse to dispute settlement in accordance with the rules and procedures of this Understanding, and shall make any such determination consistent with the findings contained in the panel or Appellate Body report adopted by the DSB or an arbitration award rendered under this Understanding;
(b) follow the procedures set forth in Article 21 to determine the reasonable period of time for the Member concerned to implement the recommendations and rulings; and
(c) follow the procedures set forth in Article 22 to determine the level of suspension of concessions or other obligations and obtain DSB authorization in accordance with those procedures before suspending concessions or other obligations under the covered agreements in response to the failure of the Member concerned to implement the recommendations and rulings within that reasonable period of time.”

In this section, to end this book, the author means to take a precise overlook on the nature of obligations under Art. 23 of the DSU as a whole by referring to two panels’ reports in part. In this respect, the Panel in US-Sections 301-310 (DS152) rules: 1
“On this basis [provision of Article 23], we conclude as follows:
(a)It is for the WTO through the DSU process - not for an individual WTO Member - to determine that a WTO inconsistency has occurred (Article 23.2(a)).
(b)It is for the WTO or both of the disputing parties, through the procedures set forth in Article 21 - not for an individual WTO Member - to determine the reasonable period of time for the Member concerned to implement DSB recommendations and rulings (Article 23.2(b)).
(c)It is for the WTO through the procedures set forth in Article 22 - not for an individual WTO Member - to determine, in the event of disagreement, the level of suspension of concessions or other obligations that can be imposed as a result of a WTO inconsistency, as well as to grant authorization for the actual implementation of these suspensions.
Article 23.2 clearly, thus, prohibits specific instances of unilateral conduct by WTO Members when they seek redress for WTO inconsistencies in any given dispute. This is, in our view, the first type of obligations covered under Article 23.
Article 23.1 is not concerned only with specific instances of violation. It prescribes a general duty of a dual nature. First, it imposes on all Members to ‘have recourse to’ the multilateral process set out in the DSU when they seek the redress of a WTO inconsistency. In these circumstances, Members have to have recourse to the DSU dispute settlement system to the exclusion of any other system, in particular a system of unilateral enforcement of WTO rights and obligations. This, what one could call ‘exclusive dispute resolution clause’, is an important new element of Members' rights and obligations under the DSU. Second, Article 23.1 also prescribes that Members, when they have recourse to the dispute settlement system in the DSU, have to ‘abide by’ the rules and procedures set out in the DSU. This second obligation under Article 23.1 is of a confirmatory nature: when having recourse to the DSU Members must abide by all DSU rules and procedures.
Turning to the second paragraph under Article 23, Article 23.2 - which, on its face, addresses conduct in specific disputes - starts with the words ‘[i]n such cases’. It is, thus, explicitly linked to, and has to be read together with and subject to, Article 23.1.
Indeed, two of the three prohibitions mentioned in Article 23.2 - Article 23.2(b) and (c) - are but egregious examples of conduct that contradicts the rules and procedures of the DSU which, under the obligation in Article 23.1 to ‘abide by the rules and procedures’ of the DSU, Members are obligated to follow. These rules and procedures clearly cover much more than the ones specifically mentioned in Article 23.2. There is a great deal more State conduct which can violate the general obligation in Article 23.1 to have recourse to, and abide by, the rules and procedures of the DSU than the instances especially singled out in Article 23.2.
Article 23 interdicts, thus, more than action in specific disputes, it also provides discipline for the general process WTO Members must follow when seeking redress of WTO inconsistencies. A violation of the explicit provisions of Article 23 can, therefore, be of two different kinds. It can be caused
(a)by an ad hoc, specific action in a given dispute, or
(b)by measures of general applicability, e.g. legislation or regulations, providing for a certain process to be followed which does not, say, include recourse to the DSU dispute settlement system or abide by the rules and procedures of the DSU.”
Furthermore, as to Art. 23 of the DSU, the Panel in US-Import Measures (DS165) confirms the ruling developed in US-Sections 301-310, and states: 2
“The Panel believes that the adopted Panel Report on United States - Sections 301-310 of the Trade Act of 1974 (‘US - Section 301’) has confirmed the crucial importance that WTO Members place on the dispute settlement system of the WTO, as the exclusive means to redress any violations of any provisions of the WTO Agreement. This fundamental principle is embedded in Article 23 of the DSU: …
An important reason why Article 23 of the DSU must be interpreted with a view to prohibiting any form of unilateral action is because such unilateral actions threaten the stability and predictability of the multilateral trade system, a necessary component for "market conditions conducive to individual economic activity in national and global markets" which, in themselves, constitute a fundamental goal of the WTO. Unilateral actions are, therefore, contrary to the essence of the multilateral trade system of the WTO. As stated in the Panel Report on US - Section 301:
‘7.75 Providing security and predictability to the multilateral trading system is another central object and purpose of the system which could be instrumental to achieving the broad objectives of the Preamble. Of all WTO disciplines, the DSU is one of the most important instruments to protect the security and predictability of the multilateral trading system and through it that of the market-place and its different operators. DSU provisions must, thus, be interpreted in the light of this object and purpose and in a manner which would most effectively enhance it.’
The structure of Article 23 is that the first paragraph states the general prohibition or general obligation, i.e. when Members seek the redress of a WTO violation, they shall do so only through the DSU. This is a general obligation. Any attempt to seek ‘redress’ can take place only in the institutional framework of the WTO and pursuant to the rules and procedures of the DSU.
The prohibition against unilateral redress in the WTO sectors is more directly provided for in the second paragraph of Article 23. From the ordinary meaning of the terms used in the chapeau of Article 23.2 (‘in such cases, Members shall’), it is also clear that the second paragraph of Article 23 is ‘explicitly linked to, and has to be read together with and subject to, Article 23.1’. That is to say, the specific prohibitions of paragraph 2 of Article 23 have to be understood in the context of the first paragraph, i.e. when such action is performed by a WTO Member with a view to redressing a WTO violation.
We also agree with the US - Section 301 Panel Report that Article 23.2 contains ‘egregious examples of conduct that contradict the rules of the DSU’ and which constitute more specific forms of unilateral actions, otherwise generally prohibited by Article 23.1 of the DSU.
‘[t]hese rules and procedures [Article 23.1] clearly cover much more than the ones specifically mentioned in Article 23.2. There is a great deal more State conduct which can violate the general obligation in Article 23.1 to have recourse to, and abide by, the rules and procedures of the DSU than the instances especially singled out in Article 23.2.’
The same Panel identified a few examples of such instances where the DSU could be violated contrary to the provisions of Article 23. Each time a Member seeking the redress of a WTO violation is not abiding by a rule of the DSU, it thus violates Article 23.1 of the DSU.
In order to verify whether individual provisions of Article 23.2 have been infringed (keeping in mind that the obligation to also observe other DSU provisions can be brought under the umbrella of Article 23.1), we must first determine whether the measure at issue comes under the coverage of Article 23.1. In other words, we need to determine whether Article 23 is applicable to the dispute before addressing the specific violations envisaged in the second paragraph of Article 23 of the DSU or elsewhere in the DSU.
Article 23.1 of the DSU provides that the criterion for determining whether Article 23 is applicable is whether the Member that imposed the measure was ‘seeking the redress of’ a WTO violation. …
The term ‘seeking’ or ‘to seek’ is defined in the Webster New Encyclopedic Dictionary as: ‘to resort to, … to make an attempt, try’. This term would therefore cover situations where an effort is made to redress WTO violations (whether perceived or WTO determined violations). The term ‘to redress’ is defined in the New Shorter Oxford English Dictionary as ‘repair (an action); atone for (a misdeed); remedy or remove; to set right or rectify (injury, a wrong, a grievance etc.); obtaining reparation or compensation’. The term ‘redress’ is defined in the New Shorter Oxford English Dictionary as: ‘reparation of or compensation for a wrong or consequent loss; remedy for or relief from some trouble; correction or reformation of something wrong’. The term 'redress' implies, therefore, a reaction by a Member against another Member, because of a perceived (or WTO determined) WTO violation, with a view to remedying the situation.
Article 23.1 of the DSU prescribes that when a WTO Member wants to take any remedial action in response to what it views as a WTO violation, it is obligated to have recourse to and abide by the DSU rules and procedures. In case of a grievance on a WTO matter, the WTO dispute settlement mechanism is the only means available to WTO Members to obtain relief, and only the remedial actions envisaged in the WTO system can be used by WTO Members. The remedial actions relate to restoring the balance of rights and obligations which form the basis of the WTO Agreement, and include the removal of the inconsistent measure, the possibility of (temporary) compensation and, in last resort, the (temporary) suspension of concessions or other obligations authorised by the DSB (Articles 3.7 and 22.1 of the DSU). The latter remedy is essentially retaliatory in nature.”



【NOTE】:
1. See, in detail, WT/DS152/R/7.38-7.46.
2. See, in detail, WT/DS165/R/6.13-6.23.



List of References

1 Sources of Legal Texts: http://www.wto.org; WTO Secretariat: The WTO Dispute Settlement Procedures (Second Edition), CAMBRIDGE UNIVERSITY PRESS, 2001.