(Adopted at the fourth session of the Eighth National People's Congress on March 17, 1996)
Table of Contents
Chapter I. | General Provisions |
Chapter II. | Types and Establishment of Administrative Punishments |
Chapter III. | Organs Administering Administrative Punishments |
Chapter IV. | Jurisdiction and Application of Administrative Punishments |
Chapter V. | Decisions on Administrative Punishments |
|
Chapter VI. | Execution of administrative punishments |
Chapter VII. | Legal liability |
Chapter VIII. | Supplementary provisions |
Chapter I. General Provisions
Article 1.
This law is enacted pursuant to the constitution, with a view to standardizing the establishment and administration of administrative punishments, guaranteeing and supervising the effective enforcement of executive commands by administrative organs, safeguarding public interests and social order, and protecting the legitimate rights and interests of citizens, legal persons or other organizations.
Article 2.
This law is applicable to the establishment and administration of administrative punishments.
Article 3.
The violations of the order of executive commands by citizens, legal persons or other organizations that merit administrative punishments shall be stipulated by laws, regulations or rules according to this law and the punishments are to be administered by administrative organs according to procedures stipulated in this law.
Administrative punishments are invalid without legal basis or without following legal proceedings.
Article 4.
Administrative punishments follow the principle of fairness and openness.
The establishment and administration of an administrative punishment must be based on facts and be corresponding to the facts, nature and circumstances of the offence against the law as well as the degree of its harm to society.
The rules governing the meting out of administrative punishments for offences against the law must be promulgated; rules not promulgated shall not become the basis for administrative punishments.
Article 5.
The combination of punishments and education shall be upheld in administering administrative punishments and correcting offences against the law, so as to teach citizens, legal persons or other organizations to abide by the law consciously.
Article 6.
Citizens, legal persons or other organizations to which administrative organs have given administrative punishments enjoy the rights of statement and defense. If they do not agree with the administrative punishments, they have the right to apply for administrative reconsideration or to initiate administrative proceedings.
Where citizens, legal persons or other organizations suffer losses from administrative punishments, which are illegally meted out by administrative organizations, they have the right to demand compensation.
Article 7.
Where citizens, legal persons or other organizations, which receive administrative punishments for violations of the law, cause losses to others with their offences against the law, they shall bear civil liability.
Where offences against the law constitute crime, investigation shall be conducted to determine criminal responsibility; administrative punishments are not to replace criminal punishments.
Chapter II. Types and Establishment of Administrative Punishments
Article 8.
Types of administrative punishments:
(1) warning;
(2) fines;
(3) confiscating illegally-gained income and property;
(4) ordering the suspension of production and operations;
(5) provisionally suspending or revoking permits or licences;
(6) administrative detention;
(7) other administrative punishments stipulated in laws and administrative regulations.
Article 9.
Various types of administrative punishments can be established by laws.
Administrative punishments that restrict personal freedom can only be established by laws.
Article 10.
Administrative regulations may establish administrative punishments exclusive of those restricting personal freedom.
Where the law has stipulated administrative punishments for offences against law, but specific stipulations are necessary in administrative regulations, stipulations on the behavior that should receive administrative punishments and the types and extent of punishments must be formulated within the limits provided by law.
Article 11.
Local laws and regulations may establish administrative punishments exclusive of those restricting personal freedom and revoking operation licences of enterprises.
Where the law and administrative regulations have stipulated administrative punishments on the offences against law, but specific stipulations are necessary in local laws and regulations, stipulations on the behaviour that should receive administrative punishments and the types and extent of punishments must be formulated within the limits provided by law and administrative regulations.
Article 12.
Rules and regulations formulated by ministries and commissions under the State Council may, within the limits provided by law and administrative regulations, make specific stipulations on the behaviour that should receive administrative punishments and on types and extent of the punishments.
For behaviour that has not yet been subject to any laws or administrative regulations and behaviour violating the order of executive commands as stated in the aforementioned rules and regulations formulated by ministries and commissions under the State Council, administrative punishments, such as warnings and a certain amount of fine, may be established. The amounts of the fines are to be stipulated by the State Council.
The State Council may authorize its directly subordinate organs that have the right of administrative punishment to make stipulations on administrative punishments according to the first and second paragraphs of this article.
Rules and regulations formulated by provincial, autonomous regional and municipal people's governments; people's governments of cities where provincial and autonomous regional people's governments are located; and people's governments of larger cities, with the State Council's approval, may provide specific stipulations on the behaviour that should receive administrative punishments and types and extent of the punishments within the limits provided by law, rules and regulations.
For behaviour which has not been subject to any laws or regulations yet and behaviour violating the order of executive commands as stated in the aforementioned rules and regulations formulated by people's governments, administrative punishments, such as warnings and a certain amount of fine, may be established. The amounts of the fines are to be stipulated by standing committees of provincial, autonomous regional, or municipal people's congresses.
Article 14.
Except for the stipulations in Articles 9, 10, 11, 12 and 13 of this law, other regulatory documents are not to establish administrative punishments.
Chapter III. Organs Administering Administrative Punishments
Article 15.
Administrative punishments are administered by administrative organs with the right of administrative punishment within the limits of their legal powers.
Article 16.
The State Council or provincial, autonomous regional and municipal people's governments authorized by the State Council may designate an administrative organ to exercise the right of administrative punishment of relevant administrative organs, but the right of administrative punishment that restricts personal freedom can be exercised only by public security organs.
Article 17.
Organizations authorized by laws and regulations to manage public affairs may administer administrative punishments within the limits of their legal authority.
Article 18.
According to the stipulations in laws, rules or regulations, administrative organs may, within the limits of their legal powers, entrust organizations that meet the stipulations in Article 19 of this law to administer administrative punishments. Administrative organs shall not entrust other organizations or individuals to administer administrative punishments.
The entrusting administrative organs shall be responsible for the entrusted organizations' behavior of administering administrative punishments and bear legal responsibility for the consequences of the behavior.
Within the scope of what they are entrusted, the entrusted organizations shall administer administrative punishments in the name of the entrusting administrative organs, and shall not re-entrust any other organizations or individuals to administer the administrative punishments.
Article 19.
The entrusted organizations shall meet the following requirements:
(1) they shall be the institutions established according to law and managing public affairs;
(2) they shall have staff who are familiar with relevant laws, rules, regulations and operations;
(3) they shall be able to organize and conduct corresponding technical inspection or evaluation on offences against the law when necessary.
Chapter IV. Jurisdiction and Application of Administrative Punishments
Article 20.
Administrative punishments are under the jurisdiction of an administrative organ with administrative punishment authority under the local people's government at or above the county level in the place where the unlawful acts take place, unless otherwise specified by law or administrative regulations.
Article 21.
When the jurisdiction over a case is in dispute, the disputing parties shall refer the case for a decision to an administrative organ at a higher level which has jurisdiction over them .
Article 22.
When unlawful acts amount to crimes, the administrative organ in charge must refer the case to a judicial organ for investigation of criminal liability according to the law.
Article 23.
In carrying out administrative punishments, administrative organs should order parties concerned to correct their unlawful acts or to correct them within a specified period.
Article 24.
Parties concerned must not be given the administrative punishment of paying fine two or more times for one unlawful act.
Article 25.
Persons under 14 years of age are not to be given administrative punishments for their unlawful acts; instead, their custodians are to be ordered to discipline them. Persons over 14 but under 18 years of age are to be given lenient or reduced administrative punishments for their unlawful acts.
Article 26.
Mentally sick persons are not to be given administrative punishments for their unlawful acts if these acts are committed when they are unable to judge or control themselves; instead, their custodians are to be ordered to keep them under close watch and to send them for medical treatment. Persons suffering from intermittent insanity shall be given administrative punishments for their unlawful acts if these acts are committed when they are mentally normal.
Article 27.
Parties concerned who meet one of the following conditions shall be given lenient or reduced administrative punishments according to the law:
(1) who voluntarily eliminate or reduce the damaging consequences resulting from their unlawful acts;
(2) who commit unlawful acts under other people's coercion;
(3) who have won credit in helping administrative organs investigate unlawful acts;
(4) other people who are given lenient or reduced administrative punishments.
Those whose unlawful acts are minor and have not resulted in damaging consequences and who promptly correct their mistakes are not to be given administrative punishments.
Article 28.
If those whose unlawful acts amount to crimes have been put under administrative detention by an administrative organ and also have been sentenced to criminal detention or prison terms by a people's court, their criminal detention or prison terms shall be reduced accordingly.
If those whose unlawful acts amount to crimes have been fined by an administrative organ and are again ordered by a people's court to pay a fine, the amount of fine shall be reduced accordingly.
Article 29.
Unless otherwise specified by law, those whose unlawful acts are not discovered within two years are not to be given administrative punishments.
The aforementioned time limit is computed from the date when the unlawful acts take place; if the unlawful acts continue or of a continuous nature, the time limit is computed from the date when the unlawful acts terminate.
Chapter V. Decisions on Administrative Punishments
Article 30.
If citizens, legal persons or other organizations shall be given administrative punishments according to the law for violating administrative management order, administrative organs must find out the facts; those whose unlawful acts are not clearly proved are not to be given administrative punishments.
Article 31.
Before making the decision to impose administrative punishments, administrative organs shall notify the parties concerned the facts, reasons and grounds on which the decision is made, as well as the rights that the parties concerned enjoy according to the law.
Article 32.
Parties concerned have the right to make a statement and to defend themselves. Administrative organs must fully hear the opinion of the parties concerned and shall verify the facts, reasons and evidence presented by the parties concerned. Administrative organs shall accept the facts, reasons and evidence presented by the parties concerned if these facts, reasons and evidence are valid.
Administrative organs must not increase punishments for the parties concerned because they have defended themselves.
Section 1. Simple Procedures
Article 33.
If, in a violation of the law where irrefutable facts can be produced and a legal basis provided for its handling, a civilian is liable to a fine of under 50 yuan and a legal person and other organizations are liable to a fine under 1,000 yuan or are liable to such administrative punishment as a warning, a decision on administrative punishment can be made on the spot. The relevant party should execute the decision on administrative punishment in accordance with Articles 46, 47 and 48 of this law.
Article 34.
When making an on-the-spot decision on administrative punishment, a law enforcement person should show his law enforcement identity card to the relevant party, fill out a numbered administrative punishment form, and give it to the relevant party on the spot.
The administrative punishment form should explicitly contain the details of the relevant party's violation of the law; the basis for the administrative punishment; the amount, time and location of the fine; and the name of the administrative department. The law enforcement person should sign or seal the completed form.
The law enforcement person should report this decision on administrative punishment to his administrative department for filing purposes.
Article 35.
If the relevant party does not agree with the on-the-spot decision on administrative punishment, he may apply for an administrative review or file an administrative lawsuit.
Section 2. General Procedures
Article 36.
Apart from meting out an on-the-spot administrative punishment in accordance with Article 33 of this law, if an administrative department discovers any behavior by a civilian, a legal person or other organizations is liable to administrative punishment, it must completely, objectively and justly investigate the case and collect the relevant evidence; if necessary, it should conduct an inspection in accordance with law and regulations.
Article 37.
When an administrative department conducts an investigation or inspection, there must be present at least two law enforcement personnel, who must produce their identity cards to the relevant party. The relevant party should truthfully answer questions and cooperate in the investigation or inspection; no obstruction is allowed. Notes must be taken during questioning or inspection.
An administrative department may conduct a sample survey in the course of collecting evidence. To prevent possible loss of evidence, and because it may be hard to obtain such evidence, it may be stored with registration on the approval of the person in charge of the administrative department. A decision should be made within seven days on how to handle it. During this period, the relevant party or other personnel are not allowed to destroy or transfer the evidence.
If the law enforcement person and the relevant party have direct common interests, avoidance is necessary.
Article 38.
After the investigation, the person in charge of the administrative department should examine the investigation results and make one of the following decisions according to the merit of each case:
(1) A decision on meting out administrative punishment to violations of law liable to administrative punishment, taking account of the seriousness of each case and its specific conditions.
(2) A decision on not meting out administrative punishment to slight violations of law that are not liable to administrative punishment.
(3) A decision on not applying administrative punishment to a case in which the facts cannot prove a violation of law.
(4) A decision on submitting to a judicial department a case in which violations of law constitute criminal offences.
The person in charge of the administrative department should conduct a collective discussion to decide a major administrative punishment on a complicated case or a major violation of the law.
Article 39.
When administrative organs impose administrative punishments according to Article 38 of this law, they shall prepare an administrative punishments decision letter. The letter shall contain the following:
(1) the names and addresses of the parties concerned;
(2) the facts and evidence of violation of the law, regulations or rules;
(3) the type of administrative punishments to be imposed and the grounds for imposing these punishments;
(4) the manner and period of carrying out the administrative punishments;
(5) if the parties concerned do not agree with the administrative punishments decision, the channels and deadline for application for administrative reconsideration or for filing an administrative lawsuit;
(6) the name of the administrative organ that makes the administrative punishments decision and the date the decision is made .
The administrative punishments decision letter must be stamped with the seal of the administrative organ that makes the decision.
Article 40.
The administrative punishments decision letter shall be handed to the parties concerned on the spot after the decision is announced. If the parties concerned are not present, the administrative organ shall send the letter to the parties concerned within seven days, according to relevant stipulations of the civil procedure law.
Article 41.
Before making the decision of imposing administrative punishments, if the administrative organ in charge and its law enforcement personnel failed to tell the parties concerned according to Articles 31 and 32 the facts, reasons, and grounds on which the administrative punishments are imposed, or refused to hear the statement and argument of the parties concerned, the administrative punishments decision is not valid, unless the parties concerned waive their right to make a statement or defend themselves.
Section 3. Procedure of Hearing
Article 42.
Before making an administrative punishment decision for suspending production and business operations, revoking certificates or business licences, imposing relatively large fines or imposing other administrative punishments, administrative organs shall notify the parties concerned of their right to a public hearing. If the parties concerned ask for a public hearing, the administrative organ shall organize one. The parties concerned shall not bear the expenses of public hearings organized by administrative organs. Public hearings are to be organized according to the following procedure:
(1) If a public hearing is requested by the parties concerned, the request shall be submitted within three days after the parties concerned are notified by the administrative organ in charge.
(2) The administrative organ shall notify the parties concerned of the time and location of the public hearing, seven days before it is held.
(3) With the exception of cases involving state secrets, business secrets or individual privacy, hearings shall be held in public.
(4) Public hearings are to be presided over by a person appointed by the administrative organ in charge and who is not one of the investigators of the case in question. If the parties concerned deem that the person presiding over the public hearing has a direct connection to the case, they have the right to ask the person to withdraw.
(5) The parties concerned may personally attend the public hearing or may ask one to two persons to represent them.
(6) At public hearings, investigators present the facts and evidence of violations of law by the parties concerned, as well as suggest administrative punishments; the parties concerned defend themselves and confront the investigators.
(7) A transcript on the public hearing shall be made, checked by the parties concerned, and signed by them or affixed with their seals.
If the parties concerned do not agree with the imposed administrative punishments that restrict physical freedom, the punishments shall be enforced according to relevant articles of the regulations on public security management and punishment.
Article 43.
After a case hearing, the administrative department should make a decision in accordance with Article 38 of this law.
Chapter VI. Execution of Administrative Punishments
Article 44.
After a decision on administrative punishment is made, the relevant party should execute the decision within the prescribed time limit.
Article 45.
If the relevant party applies for an administrative review or files an administrative lawsuit because he does not agree with the decision on administrative punishment, this administrative punishment still remains valid, except when there are other legal provisions.
Article 46.
The administrative department that decides on a fine should be separated from the institution that collects the fine.
Apart from the fine collected on the spot in accordance with Articles 47 and 48 of this law, neither the administrative department that decided on the fine nor its law enforcement personnel are not allowed to collect any other fines of their own accord.
The relevant party should, within 15 days after receipt of the notice on administrative punishment, pay the fine at a designated bank, which should accept the payment and directly deposit it in state treasury.
Article 47.
In cases where an on-the-spot decision is made on administrative punishment in accordance with Article 33 of this law, a law enforcement person may collect a fine on the spot if one of the following circumstances applies:
Article 48.
In remote regions, in rivers and seas and in regions with poor transport facilities, if the relevant party really finds it hard to pay the fine at a designated bank after an administrative department or its law enforcement personnel make a decision on administrative punishment in accordance with Articles 33 and 38 of this law, the administrative department or its law enforcement personnel may collect the fine on the spot at the relevant party's request.
Article 49.
When an administrative department or its law enforcement personnel collect a fine on the spot, they should use a standardized receipt of a provincial, autonomous regional or municipal financial department for the fine; if they do not produce a standardized receipt of the financial department, the relevant party has the right not to pay the fine.
Article 50.
A law enforcement person should, within two days after collection of the fine on the spot, submit the fine to his administrative department; the fine collected on a river or at sea should be submitted to the administrative department within two days from the date the law enforcement person comes ashore, and the administrative department should deliver the fine to a designated bank within two days.
Article 51.
If the relevant person does not execute the decision on administrative punishment in due time, the administrative department that made the decision on administrative punishment may take the following measures:
(1) In a case of nonpayment of a fine due, a daily surcharge of 3 per cent will be imposed on the fine;
(2) In accordance with law, the property sealed up and detained will be auctioned, or the deposit frozen will be allotted for payment of the fine;
(3) A request will be made to a people's court for compulsory implementation.
Article 52.
If the relevant party incurs economic difficulties and wishes to postpone the payment of a fine or pay it by instalments, postponement or instalment can be permitted upon application by the relevant party with the approval of the administrative department.
Article 53.
Property confiscated according to law, other than that which should be destroyed according to law, must be put up for public auction according to state provisions or handled according to relevant state provisions.
Fines, confiscated illicit earnings or revenue gained by auctioning off unlawful property must be turned over to the state treasury, and under no circumstances can any administrative organs or individuals retain the money or share it in secret, or partake of it in disguised form; under no circumstances can financial departments return fines, confiscated illicit earnings or revenue gained by auctioning off unlawful property to the administrative organs that have made decisions on administrative punishments.
Article 54.
Administrative organs should establish a sound system of supervision over administrative punishments. The people's governments at and above the county level should oversee and check administrative punishments with greater intensity.
Citizens, legal persons or other organizations are entitled to petition against or impeach administrative punishments meted out by administrative organs; administrative organs should conduct investigations seriously and take the initiative in rectifying any erroneous administrative punishments found.
Chapter VII. Legal Liability
Article 55.
Administrative organs administering administrative punishments under any of the following situations are to be ordered by superior administrative organs or the departments concerned to make corrections; and administrative punishments can be meted out to persons directly in charge and other personnel held directly responsible for these matters:
(1) meting out administrative punishments without a legal basis;
(2) arbitrarily changing the types and extent of administrative punishments;
(3) violating the statutory procedure on administrative punishment;
(4) violating the provisions in Article 18 of this law on administering administrative punishments by proxy.
Article 56.
Relevant parties punished by administrative organs are entitled to reject and impeach the punishments if there are no receipts confirming the payment of fines or the confiscation of property or receipts used for confirming the payment of fines or the confiscation of property are made and issued by non- statutory departments. Superior administrative organs or the departments concerned are to seize and destroy any unlawful receipts used and mete out administrative punishments to persons directly in charge and other personnel held directly responsible for the matters.
Article 57.
Administrative organs collecting fines by themselves in violation of the provisions in Article 46 of this law and financial departments returning fines or auction revenue to administrative organs in violation of the provisions in Article 53 of this law are to be ordered by superior administrative organs or the departments concerned to make corrections; and administrative punishments are to be meted out according to law to persons directly in charge and other personnel held directly responsible for the matters.
Article 58.
Administrative organs retaining fines or confiscated illicit earnings or property, sharing them in secret or partaking of them in disguised form are to be ordered by financial departments or the departments concerned for reimbursement, and administrative punishments are to be meted out according to law to persons directly in charge and other personnel held directly responsible for the matters; those whose cases are so serious as to constitute a crime are liable to criminal charges according to law.
Law enforcement officers abusing their powers to ask for or accept bribes or embezzle fines, which constitutes a crime, are liable to criminal charges according to law; and administrative punishments are to be meted out according to law to those whose cases are too light to constitute a crime.
Article 59.
Administrative organs that inflict losses on the parties concerned by using or damaging property seized should make compensation according to law, and administrative punishments are to be meted out according to law to persons directly in charge and other personnel held directly responsible for the matters.
Article 60.
Administrative organs doing damage to citizens or their property or inflicting losses on legal persons or other organizations by unlawfully conducting checks or enforcing measures should make compensation according to law, and administrative punishments are to be meted out to persons directly in charge and other personnel held directly responsible for the matters; those whose cases are so serious as to constitute crimes are liable to criminal charges according to law.
Article 61.
Administrative organs which, for the sake of their own selfish interests, do not turn over to judicial organs persons liable to criminal charges and mete out administrative punishments to those concerned in lieu of criminal punishments are to be ordered by superior administrative organs or departments concerned to make corrections; administrative punishments are to be meted out to persons directly in charge of organs which refuse to make corrections ; those who engage in self-seeking misconduct and shield and wink at illegal acts are liable to criminal charges in accordance with the provisions of Article 188 of the Criminal Law.
Article 62.
In cases where the legitimate rights and interests of citizens, legal persons or other organizations, public interests and social order are jeopardized because law enforcement officers are so negligent in their duties that illegal acts have gone unchecked and unpunished, administrative punishments are to be meted out to persons directly in charge and other personnel held directly responsible for the matters; those whose cases are so serious as to constitute a crime are liable to criminal charges according to the law.
Chapter VIII. Supplementary Provisions
Article 63.
The concrete method of implementation of the provisions in Article 46 of this law on the distinction between making decisions on fines and collecting fines is to be formulated by the State Council.
Article 64.
This law is to come into force as of October 1, 1996.
The provisions of laws and regulations on administrative punishments enacted before the promulgation of this law that are incongruous with this law should be revised according to the provisions of this law from the day of its promulgation, and the revisions are to be completed by December 31, 1997.
