Is an administrative penalty for an "administrative lawsuit" ordering correction or a time limit for correcting the violation?

Court gist

Is ordering correction or correcting a violation within a time limit an administrative penalty? First, there is a difference between ordering corrections (or making corrections within a time limit) and the concept of administrative punishment. Administrative punishment is a legal sanction given by an administrative entity to an act that violates the order of administrative management in accordance with the procedures prescribed in accordance with law; and ordering correction or correction of illegal conduct within a time limit refers to an order issued by an administrative organ to the offender in the process of implementing administrative punishment. Second, the nature and content of the two are different. Administrative punishment is a legal sanction, a restriction and deprivation of the offender's personal freedom and property rights, and a punishment that causes damage to the spirit and reputation of the offender; and ordering correction or correction of the illegal act within a time limit is not a sanction in itself, but only requires the offender to perform his statutory obligations, stop the illegal act, eliminate the adverse consequences, and restore the original state. Third, the regulatory perspectives of the two are different. Administrative punishment is from the perspective of punishment, imposing a new obligation on the administrative counterpart to warn the offender not to break the law again, otherwise he will be punished; while ordering correction or making corrections within a time limit is to order the offender to perform the existing statutory obligations, correct the violation, and restore the original situation. Fourth, the two forms are different. Article 8 of the Administrative Punishment Law stipulates the specific types of administrative punishments, including: warnings, fines, confiscation of illegal gains, illegal property, orders to stop production and business, temporary withholding or revocation of permits, licenses, and administrative detention;

☑ Judgment documents

Supreme People's Court of the People's Republic

Administrative decisions

(2018) SPC Xingshen No. 4718

Applicant for retrial (defendant in the first instance, appellee in the second instance): People's Government of Zibo City, Shandong Province, domicile in Renmin West Road, Zhangdian District, Zibo City, Shandong Province**.

Respondent (plaintiff in the first instance, appellant in the second instance): Wang Yuanhe, male.

The appellee of the second instance (the third person in the first instance): Shandong Huashi Beer Co., Ltd., domiciled in Lishan Road, Yiyuan County, Shandong Province**.

Legal representative: Liu Xunfu, chairman of the board of directors of the company.

In the case of Wang Yuanhe v. Administrative Reconsideration of the People's Government of Zibo City, Shandong Province (hereinafter referred to as the Zibo Municipal Government), the applicant for retrial, the Zibo Municipal Government, was dissatisfied with the Shandong Provincial Higher People's Court's (2017) Lu Xingzhong No. 220 Administrative Judgment and applied to this court for a retrial. This court formed a collegial panel in accordance with law, attended by adjudicator Huang Yongwei, adjudicator Liang Fengyun, and adjudicator Wang Haifeng, to examine the case, and the review has now been concluded.

On May 16, 2016, the Zibo Municipal Government made administrative reconsideration decision No. 11 [2016] of the Zibo Municipal Government (hereinafter referred to as the decision to be sued for reconsideration), revoking the Notice of Rectification within the Time Limit of Zibo Municipal Housing Provident Fund Management Center in Shandong Province (hereinafter referred to as the Notice of Rectification within the Time Limit of the Order of the Case) issued by the Housing Provident Fund Management Center of Zibo City, Shandong Province .2015 (hereinafter referred to as the Notice of Rectification within the Time Limit of the Order involved in the Case). Dissatisfied with the decision to reconsider the lawsuit, Wang Yuanhe filed an administrative lawsuit in this case with the Intermediate People's Court of Zibo City, Shandong Province, requesting the court to revoke the reconsideration decision in accordance with law. The court of first instance ruled to reject Wang Yuanhe's claim. The second-instance judgment of the Shandong Provincial High People's Court revoked the first-instance judgment and the decision on reconsideration of the lawsuit, and ordered the Zibo Municipal Government to make a new reconsideration decision.

The court of first instance found that the (2013) Zimin Zai Zhong Zi No. 22 Civil Judgment rendered by the court of first instance on August 7, 2013 confirmed that between February 1998 and October 25, 2007, Wang Yuanhe had a de facto employment relationship with Shandong Huashi Beer Co., Ltd. (hereinafter referred to as Huashi Company). On October 26, 2007, Huashi Company signed another labor contract with Wang Yuanhe for a period of 3 years (the contract stated that it was from October 26, 2007 to October 25, 2007). On July 31, 2008, Wang Yuanhe filed a civil lawsuit with the Yiyuan County People's Court in Shandong Province, requesting the termination of his labor contract with Huashi Company. During the period of the labor relationship between Wang Yuanhe and Huashi Company, Huashi Company did not set up a provident fund account for Wang Yuanhe. After receiving Wang Yuanhe's complaint, the Housing Provident Fund Management Center of Zibo City, Shandong Province, filed a case for investigation on August 17, 2015, and issued a notice of rectification within a time limit on the 28th of the same month. The notice found that Huashi Company had not established a housing provident fund for Wang Yuanhe in accordance with the provisions of Articles 15, 17 and 37 of the Regulations on the Administration of Housing Provident Fund, and required Huashi Company to handle the procedures for the establishment of housing provident fund for Wang Yuanhe within 5 days after receiving the notice. Huashi Company was not satisfied with the notice and applied to the Zibo Municipal Government for administrative reconsideration on February 18, 2016. On May 16, 2016, the Zibo Municipal Government made a decision to be sued for reconsideration, finding that Huashi Company failed to handle the formalities for the establishment of a housing provident fund account for Wang Yuanhe during its de facto employment relationship with Wang Yuanhe, which violated the provisions of Article 15, Paragraph 1 of the Regulations on the Administration of Housing Provident Fund. Because the illegal act has not been discovered within two years, according to Article 29 of the Administrative Punishment Law of the People's Republic of China (hereinafter referred to as the Administrative Punishment Law), Huashi Company shall not be given an administrative penalty. According to the provisions of Item 3 of The First Paragraph of Article 18 of the Administrative Reconsideration Law of the People's Republic of China (hereinafter referred to as the Administrative Reconsideration Law), the specific administrative act of the Notice of Rectification ordered to be rectified within a time limit made by the Housing Provident Fund Management Center of Zibo City, Shandong Province shall be revoked. Wang Yuanhe was not satisfied with the decision to be sued for reconsideration, and requested the court to revoke the decision to reconsider the lawsuit in accordance with law.

The court of first instance held that the focus of the trial of this case was whether the facts of the founding of the reconsideration decision made by the Zibo Municipal Government on May 16, 2016 were clear, whether the reconsideration procedure was legal, and whether the application of the law was correct. According to the provisions of Article 15 of the Regulations on the Administration of Housing Provident Fund, after Huashi Company hires Wang Yuanhe as an employee of its own unit, it shall go to the Housing Provident Fund Management Center for payment registration on the 30th day from the date of recruitment, and hold the review documents of the Housing Provident Fund Management Center to the entrusted bank to handle the procedures for the establishment of the housing provident fund account for the employees. At the same time, according to article 37 of the Regulations on the Administration of Housing Provident Fund, if Huashi Company does not handle the procedures for the establishment of a housing provident fund account for Wang Yuanhe, it can be ordered by the Housing Provident Fund Management Center to handle it within a time limit. The (2013) Zi min Zai Zhong Zi No. 22 Civil Judgment rendered by the Court of First Instance on 7 August 2013 has confirmed the existence of a de facto employment relationship with Huashi Company between February 1998 and October 25, 2007. On October 26, 2007, Huashi Company signed another labor contract with Wang Yuanhe for a period of 3 years. Although the contract states that it ran from 26 October 2007 to 25 October 2007. However, according to the original intention and overall interpretation of the labor contract, it should be determined that the labor contract should be from October 26, 2007 to October 25, 2010. The date of October 25, 2007 written on the employment contract should be a clerical error. On July 31, 2008, Wang Yuanhe filed a civil lawsuit with the Yiyuan County People's Court in Shandong Province, requesting the termination of his labor contract with Huashi Company. Therefore, according to the Labor Contract Law of the People's Republic of China and other relevant provisions, the labor relationship between Wang Yuanhe and Huashi Company should exist until July 31, 2008. The Zibo Municipal Government's reconsideration decision determined that after October 25, 2007, there was no longer an employment relationship between Wang Yuanhe and Huashi Company, and the facts were found to be wrong and corrected according to law. The employment relationship between Wang Yuanhe and Huashi Company should be from February 1998 to July 31, 2008.

Article 29 of the Administrative Punishment Law stipulates: "Where an illegal act is not discovered within two years, an administrative punishment shall not be given." Except as otherwise provided by law. The time limit provided for in the preceding paragraph is calculated from the date on which the illegal conduct occurs; where the illegal conduct has a continuous or continuing state, it is calculated from the date on which the conduct ends. "In this case, between February 1998 and July 31, 2008, Huashi Company did not set up an account for Wang Yuanhe, and its illegal acts were in a continuous state, so the end date of Huashi Company's illegal acts should be July 31, 2008. The time when the Housing Provident Fund Management Center of Zibo City, Shandong Province, discovered the illegal acts of Huashi Company through Wang Yuanhe's report in August 2015, and from July 31, 2008, when the illegal acts ended to the date when the Zibo Housing Provident Fund Management Center of Shandong Province discovered huashi Company's illegal acts after reporting through Wang Yuanhe, it had exceeded the two-year limitation period for pursuing responsibility stipulated in Article 29 of the Administrative Punishment Law. Therefore, the specific administrative act of the notice of rectification within a time limit made by the Housing Provident Fund Management Center of Zibo City, Shandong Province, does not take into account the limitation period for liability stipulated in Article 29 of the Administrative Punishment Law, and should be revoked according to law. The Zibo Municipal Government, in accordance with the provisions of Item 3 of The First Paragraph of Article 18 of the Administrative Reconsideration Law, decided to revoke the specific administrative act of the Notice of Rectification within a Time Limit for the Housing Provident Fund Management Center of Zibo City, Shandong Province, and the application of the law was correct. The Administrative Punishment Law is the basic law for the establishment and implementation of administrative penalties by administrative organs, and unless there are special provisions, the administrative punishments of administrative organs shall follow the provisions of the Administrative Punishment Law. Therefore, Wang Yuanhe held that the Notice of Rectification ordered by the Housing Provident Fund Management Center of Zibo City, Shandong Province, was not applicable to Article 29 of the Administrative Punishment Law, and did not support it. After Huashi Company submitted the reconsideration application, the Zibo Municipal Government made the reconsideration decision of the respondent and served it in accordance with the Administrative Reconsideration Law and relevant provisions, after preliminary review, acceptance, respondent's reply, trial, decision and other links. The reconsideration procedure of the Zibo Municipal Government complies with the law. In summary, although the decision on reconsideration made by the Zibo Municipal Government was erroneous in the determination of some facts, the erroneous determination had no impact on the outcome of the reconsideration decision. The reconsideration decision procedure is lawful and the applicable law is correct. Wang Yuanhe's litigation claims, facts and legal basis are insufficient and will not be supported. On November 3, 2016, in accordance with Article 69 of the Administrative Procedure Law of the People's Republic of China, the court of first instance rendered the (2016) Lu 03 Xingchu No. 27 Administrative Judgment: Rejecting Wang Yuanhe's litigation claims.

Dissatisfied with the first-instance judgment, Wang Yuanhe appealed to the Shandong Provincial High People's Court, requesting that the first-instance judgment be revoked, and that Huashi Company continue to perform the rectification notice ordered by the Housing Provident Fund Management Center of Zibo City, Shandong Province, within a time limit, and ordering him to pay the housing provident fund to Wang Yuanhe within a time limit.

The facts disclosed in the second instance review of the Shandong Provincial High People's Court are consistent with those of the court of first instance.

The court of second instance held that the focus of the dispute in this case was whether the administrative act of ordering Huashi Company to make corrections within a time limit made by the Housing Provident Fund Management Center of Zibo City, Shandong Province, was an administrative punishment, that is, whether ordering correction or correction of illegal acts within a time limit was an administrative punishment. First of all, administrative punishment is an administrative sanction given by an administrative entity for violations of administrative management order in accordance with the procedures prescribed in accordance with law; while ordering correction or correction of illegal acts within a time limit refers to an administrative act in which an administrative entity orders the offender to perform its existing statutory obligations or stops or corrects the illegal act in order to maintain the statutory order. The Administrative Punishment Division is punitive in accordance with the new obligations of the counterpart, while ordering correction or correction of illegal acts within a time limit is to order the counterparty to perform the existing statutory obligations without punitive nature. Secondly, Article 8 of the Administrative Punishment Law stipulates: "The types of administrative punishments: (1) warnings; (2) fines; (3) confiscation of illegal gains and confiscation of illegal property; (4) orders to stop production and business; (5) temporary suspension or revocation of licenses, suspension or revocation of licenses; (6) administrative detention; and (7) other administrative penalties provided for by laws and administrative regulations." "Ordering corrections within a time limit does not fall within the category of administrative penalties enumerated in the above provisions. In summary, ordering corrections or correcting illegal acts within a time limit is an administrative act different from administrative punishment, and there is no inclusion or affiliation.

Article 37 of the Regulations on the Administration of housing provident fund stipulates: "In violation of the provisions of these Regulations, if the unit does not register the housing provident fund or does not handle the formalities for the establishment of the housing provident fund account for the employees of the unit, the housing provident fund management center shall order it to be handled within a time limit; if it is not handled within the time limit, it shall be fined between 10,000 yuan and 50,000 yuan." It can be seen from this that the Housing Provident Fund Management Center has the administrative authority to make two administrative acts: ordering corrections and administrative penalties. Specific to this case, there was an employment relationship between Wang Yuanhe and Huashi Company for a certain period of time, but Huashi Company did not handle the procedures for setting up a housing provident fund account for him. The Housing Provident Fund Management Center of Zibo City, Shandong Province, has the administrative authority to order corrections and administrative penalties for Huashi Company's failure to complete the formalities for Wang Yuanhe to set up a housing provident fund account. The notice of rectification order made by the Housing Provident Fund Management Center of Zibo City, Shandong Province, ordered Huashi Company to make corrections within a time limit, and did not impose administrative penalties, that is, it only made administrative acts to order corrections. The Administrative Punishment Law is the basic law that regulates the administrative acts of administrative punishment. The administrative reconsideration decision made by the Zibo Municipal Government shall apply Article 29 of the Administrative Punishment Law to revoke the notice of rectification made by the Housing Provident Fund Management Center of Zibo City, Shandong Province, within a time limit for the correction of the case, which is an error in the application of law and should be revoked. The court of first instance upheld the improper administrative reconsideration decision of the Zibo Municipal Government, and the court of second instance corrected it. The existence of the labor relationship between Wang Yuanhe and Huashi Company is the premise for the court of first instance to apply the statute of limitations for administrative punishment, and in view of the fact that the relevant provisions on administrative punishment are not applicable in this case, it does not fall within the scope of review and will not be tried. On June 20, 2017, the court of second instance rendered the (2017) Lu Xingzhong No. 220 Administrative Judgment in accordance with the provisions of Article 89, Paragraph 1, Item 2 of the Administrative Procedure Law of the People's Republic of China: 1. Revocation of the First Instance Judgment; 2. Revocation of the Zibo Municipal Government's Decision to Be Sued for Reconsideration; and 3. Ordering the Zibo Municipal Government to Make a New Reconsideration Decision on Huashi Company's Application for Administrative Reconsideration.

The Zibo Municipal Government applied to this court for a retrial, requesting that the second-instance judgment be revoked and the case be retried. The facts and reasons for his application for retrial are: ordering corrections should be administrative punishments, and the second-instance judgment found that "correction within a time limit" is not an administrative punishment, and it and administrative punishments belong to two kinds of administrative acts, which is an error in the application of law.

This court held that the focus of the dispute in this case was whether the administrative act of ordering Huashi Company to make corrections within a time limit made by the Housing Provident Fund Management Center of Zibo City, Shandong Province, was an administrative punishment, that is, whether ordering correction or correction of illegal acts within a time limit was an administrative punishment. First, there is a difference between ordering corrections (or making corrections within a time limit) and the concept of administrative punishment. Administrative punishment is a legal sanction given by an administrative entity to an act that violates the order of administrative management in accordance with the procedures prescribed in accordance with law; and ordering correction or correction of illegal conduct within a time limit refers to an order issued by an administrative organ to the offender in the process of implementing administrative punishment. Second, the nature and content of the two are different. Administrative punishment is a legal sanction, a restriction and deprivation of the offender's personal freedom and property rights, and a punishment that causes damage to the spirit and reputation of the offender; and ordering correction or correction of the illegal act within a time limit is not a sanction in itself, but only requires the offender to perform his statutory obligations, stop the illegal act, eliminate the adverse consequences, and restore the original state. Third, the regulatory perspectives of the two are different. Administrative punishment is from the perspective of punishment, imposing a new obligation on the administrative counterpart to warn the offender not to break the law again, otherwise he will be punished; while ordering correction or making corrections within a time limit is to order the offender to perform the existing statutory obligations, correct the violation, and restore the original situation. Fourth, the two forms are different. Article 8 of the Administrative Punishment Law stipulates the specific types of administrative punishments, including: warnings, fines, confiscation of illegal gains, illegal property, orders to stop production and business, temporary withholding or revocation of permits, licenses, and administrative detention; In summary, ordering corrections or correcting illegal acts within a time limit is an administrative act that is different from administrative punishment, and the court of second instance held that it was not an administrative punishment and was not improper.

In this case, according to the facts ascertained by the courts of first and second instance, there was an employment relationship between Wang Yuanhe and Huashi Company for a certain period of time, but Huashi Company did not go through the formalities for setting up a housing provident fund account for him. According to Article 37 of the Regulations on the Administration of housing provident fund, "if a unit fails to register the housing provident fund payment or does not handle the formalities for the establishment of a housing provident fund account for the employees of the unit in violation of the provisions of these Regulations, the housing provident fund management center shall order it to be handled within a time limit; if it is not handled within the time limit, it shall be fined between 10,000 yuan and 50,000 yuan", and the housing provident fund management center has the administrative authority to make two administrative acts: ordering correction within a time limit and administrative punishment. Accordingly, the Housing Provident Fund Management Center of Zibo City, Shandong Province, made a notice of rectification ordering Huashi Company to make corrections within a time limit, but did not impose administrative penalties. The Zibo Municipal Government made a decision to reconsider the lawsuit in accordance with the provisions of Article 29 of the Administrative Punishment Law, and revoked the notice of rectification within the time limit for the case made by the Housing Provident Fund Management Center of Zibo City, Shandong Province, which is an error in the application of law. The court of second instance ruled to revoke the decision to reconsider the lawsuit, which was not improper.

In summary, the retrial application of the applicant Zibo Municipal Government does not comply with the circumstances provided for in Article 91 of the Administrative Procedure Law of the People's Republic of China. In accordance with the second paragraph of Article 116 of the Interpretation of the Supreme People's Court on the Application of the Administrative Procedure Law of the People's Republic of China, the ruling is as follows:

The application for retrial by the People's Government of Zibo City, Shandong Province, was rejected.

Chief Judge Huang Yongwei

Judge Liang Fengyun

Judge Wang Haifeng

December 27, 2018

Clerk Song Fangfei