People's Republic of China Administrative Punishment Law
Chapter I: General Provisions
Article 1: This Law is formulated on the basis of the Constitution so as to regulate the establishment and implementation of administrative punishments, to ensure and supervise the effective implementation of administrative management by administrative organs, to preserve the public interest and social order, and to protect the lawful rights and interests of citizens, legal persons, or other organizations.
Article 2: This Law applies to the establishment and implementation of administrative punishments.
Article 3: Where citizens, legal persons, or other organizations violate the order of administrative management and shall be given administrative punishments, they shall be provided for by laws, regulations, or rules in accordance with this Law, and shall be implemented by administrative organs in accordance with the procedures provided for in this Law.
Where there is no legally-prescribed basis or legally-prescribed procedures are not followed, the administrative punishment is invalid.
Article 4: Administrative punishments follow the principles of fairness and openness.
The establishment and implementation of administrative punishments must be based on facts, and be commensurate with the facts, nature, circumstances, and degree of harm to society of the violation.
Provisions for imposing administrative penalties for violations of the law must be made public; Where it has not been announced, it must not be the basis for administrative punishments.
Article 5: The implementation of administrative punishments and correction of illegal conduct shall persist in combining punishment with education, and educate citizens, legal persons, or other organizations to conscientiously abide by the law.
Article 6: Citizens, legal persons, or other organizations enjoy the right to make statements and defenses against administrative punishments given by administrative organs; Those who are dissatisfied with the administrative punishment have the right to apply for administrative reconsideration or file an administrative lawsuit in accordance with law.
Where citizens, legal persons, or other organizations suffer harm as a result of administrative organs illegally giving administrative punishments, they have the right to demand compensation in accordance with law.
Article 7: Where citizens, legal persons, or other organizations receive administrative punishments for violating the law, and their illegal conduct causes harm to others, they shall bear civil liability in accordance with law.
Where the illegal conduct constitutes a crime, criminal responsibility shall be pursued in accordance with law, and administrative punishment must not be substituted for criminal punishment.
Chapter II: Types and Sets of Administrative Punishments
Article 8: Types of administrative punishments:
(1) Warnings;
(2) Fines;
(3) Confiscation of unlawful gains and confiscation of illegal property;
(4) Ordering the suspension of production and business;
(5) Temporarily withholding or revoking permits, or suspending or revoking licenses;
(6) Administrative detention;
(7) Other administrative punishments provided for by laws and administrative regulations.
Article 9: The law may set up various types of administrative punishments.
Administrative penalties restricting personal liberty can only be set by law.
Article 10: Administrative regulations may set administrative punishments other than restrictions on personal liberty.
Where the law has already made provisions on administrative punishment for illegal acts, and administrative regulations need to make specific provisions, they must be provided for within the scope of the acts, types, and scope of administrative punishments prescribed by law.
Article 11: Local regulations may set administrative punishments other than restricting personal liberty and revoking an enterprise's business license.
Where laws and administrative regulations have already made provisions on administrative punishments for illegal acts, and local regulations need to make specific provisions, they must be provided for within the scope of the acts, types, and ranges of administrative punishments provided for in the laws and administrative regulations.
Article 12: Rules formulated by ministries and commissions under the State Council may make specific provisions within the scope of the conduct, type, and scope of administrative punishments provided for by laws and administrative regulations.
Where laws or administrative regulations have not yet been formulated, the rules formulated by the ministries and commissions of the State Council as provided for in the preceding paragraph may set administrative penalties of warnings or fines for violations of administrative management order. The limit of fines shall be prescribed by the State Council.
The State Council may authorize directly subordinate institutions with administrative punishment authority to provide for administrative punishments in accordance with the provisions of paragraphs 1 and 2 of this article.
Article 13: The rules formulated by the people's governments of provinces, autonomous regions, and municipalities directly under the Central Government, the people's governments of the people's governments of provinces and autonomous regions, and the people's governments of larger cities approved by the State Council, may make specific provisions within the scope of the acts, types, and ranges of administrative punishments provided for by laws and regulations.
Where laws or regulations have not yet been formulated, the rules formulated by the people's governments provided for in the preceding paragraph may set administrative penalties of warnings or fines for violations of the order of administrative management. The limits of fines shall be prescribed by the standing committees of the people's congresses of provinces, autonomous regions, and municipalities directly under the Central Government.
Article 14: In addition to the provisions of Articles 9, 10, 11, 12 and 13 of this Law, other normative documents shall not set administrative penalties.
Chapter III: Organs for the Implementation of Administrative Punishments
Article 15: Administrative punishments are to be carried out by administrative organs with administrative punishment powers within the scope of their legally-prescribed authority.
Article 16: The State Council or the people's governments of provinces, autonomous regions, or municipalities directly under the Central Government authorized by the State Council may decide on an administrative organ to exercise the administrative punishment power of the relevant administrative organ, but the administrative punishment power restricting personal liberty may only be exercised by the public security organs.
Article 17: Organizations authorized by laws and regulations to have public affairs management functions may carry out administrative punishments within the scope of legally-prescribed authorization.
Article 18: In accordance with the provisions of laws, regulations, or rules, administrative organs may, within the scope of their legally-prescribed authority, entrust organizations that meet the requirements of article 19 of this Law to carry out administrative punishments. Administrative organs must not entrust other organizations or individuals to carry out administrative punishments.
Entrusting an administrative organ to carry out an administrative punishment shall be responsible for oversight of the entrusted organization's conduct and bear legal responsibility for the consequences of that conduct.
Within the scope of the entrustment, the entrusted organization is to carry out administrative punishments in the name of the entrusting administrative organ; No other organization or individual must be entrusted to carry out administrative punishments.
Article 19: Entrusted organizations must meet the following requirements:
(1) Public-institution organizations established in accordance with law to manage public affairs;
(2) Have staff who are familiar with relevant laws, regulations, rules, and operations;
(3) Where it is necessary to conduct a technical inspection or technical appraisal of illegal conduct, there shall be conditions to organize the corresponding technical inspection or technical appraisal.
Chapter IV: Jurisdiction and Application of Administrative Punishments
Article 20: Administrative punishments are under the jurisdiction of the administrative organs of the local people's governments at the county level or above where the illegal conduct occurred and have the power to impose administrative punishments. Except as otherwise provided by laws and administrative regulations.
Article 21: Where a dispute arises over jurisdiction, it is to be reported to the common administrative organ at the level above for designation of jurisdiction.
Article 22: Where the illegal conduct constitutes a crime, the administrative organ must transfer the case to the judicial organs and pursue criminal responsibility in accordance with law.
Article 23: When administrative organs carry out administrative punishments, they shall order the parties to make corrections or correct the illegal conduct within a set period of time.
Article 24: The same illegal conduct of a party must not be given an administrative punishment of two or more fines.
Article 25: Where persons under the age of 14 have illegal conduct, administrative punishments are not to be given, and guardians are ordered to discipline them; Where persons who have reached the age of 14 but are not yet 18 years old have illegal conduct, the administrative punishment is to be mitigated or commuted.
Article 26: Where mentally ill persons have illegal conduct when they are unable to recognize or control their own conduct, administrative punishments are not to be given, but their guardians shall be ordered to strictly supervise and treat them. Where intermittent mentally ill persons commit illegal acts when they are mentally normal, they shall be given administrative punishments.
Article 27: In any of the following circumstances, parties shall be given a mitigated or commuted administrative punishment in accordance with law:
(1) Actively eliminating or mitigating the harmful consequences of illegal conduct;
(2) Being coerced by others to commit illegal acts;
(3) Cooperate with administrative organs in investigating and handling illegal conduct and have meritorious service;
(4) Other mitigated or commuted administrative punishments in accordance with law.
Where the illegal conduct is minor and promptly corrected, and no harmful consequences are caused, administrative punishment is not to be given.
Article 28: Where the illegal conduct constitutes a crime, and the people's court gives a sentence of short-term detention or fixed-term imprisonment, and the administrative organ has already given the party administrative detention, the corresponding sentence shall be deducted in accordance with law.
Where the illegal conduct constitutes a crime, and when the people's court gives a fine, and the administrative organ has already given the party a fine, the corresponding fine shall be deducted.
Article 29: Where illegal conduct is not discovered within two years, administrative punishments are no longer to be given. Except as otherwise provided by law.
The time period provided for in the preceding paragraph is calculated from the date on which the illegal conduct occurred; Where the illegal conduct is continuous or continuous, it is calculated from the date on which the conduct ends.
Chapter V: Decisions on Administrative Punishments
Article 30: Where citizens, legal persons, or other organizations violate the order of administrative management and shall be given an administrative punishment in accordance with law, the administrative organ must ascertain the facts; Where the facts of the violation are unclear, administrative punishments must not be given.
Article 31: Before administrative organs make an administrative punishment decision, they shall inform the parties of the facts, reasons, and basis for making the administrative punishment decision, and inform the parties of the rights they enjoy in accordance with law.
Article 32: Parties have the right to make statements and defenses. Administrative organs must fully hear the opinions of the parties, and shall conduct a review of the facts, reasons, and evidence submitted by the parties; Where the facts, reasons, or evidence submitted by the parties are sustained, the administrative organs shall adopt them.
Administrative organs must not increase punishment because of a party's defense.
Section 1: Simplified Procedures
Article 33: Where the facts of the violation are conclusive and there is a legally-prescribed basis, and an administrative punishment of up to 50 RMB is imposed on a citizen, or up to 1,000 RMB is imposed on a legal person or other organization, an administrative punishment decision may be made on the spot. Parties shall perform administrative punishment decisions in accordance with the provisions of articles 46, 47, and 48 of this Law.
Article 34: Where law enforcement personnel make an administrative punishment decision on the spot, they shall present their law enforcement identification documents to the parties, and complete the administrative punishment decision document in a predetermined format and numbered. The administrative punishment decision shall be delivered to the parties on the spot.
The administrative punishment decision documents provided for in the preceding paragraph shall clearly indicate the parties' illegal conduct, the basis for the administrative punishment, the amount, time, and place of the fine, and the name of the administrative organ, and are to be signed or sealed by the law enforcement personnel.
Administrative punishment decisions made by law enforcement personnel on the spot must be reported to the administrative organ to which they belong for the record.
Article 35: Where parties are dissatisfied with an administrative punishment decision made on the spot, they may apply for administrative reconsideration or initiate an administrative lawsuit in accordance with law.
Section 2: General Procedures
Article 36: In addition to the administrative punishments provided for in article 33 of this Law that may be given on the spot, where administrative organs discover that citizens, legal persons, or other organizations have conduct that shall be given administrative punishments in accordance with law, they must comprehensively, objectively, and impartially investigate and collect relevant evidence; When necessary, inspections may be conducted in accordance with the provisions of laws and regulations.
Article 37: When administrative organs conduct investigations or inspections, there must not be fewer than two law enforcement personnel, and shall present their identification to the parties or relevant personnel. Parties or relevant persons shall truthfully answer inquiries and assist in investigations or inspections, and must not obstruct them. A record shall be made of the questioning or inspection.
When collecting evidence, administrative organs may employ methods of sampling evidence; In circumstances where evidence might be destroyed or difficult to obtain in the future, upon approval of the responsible person for the administrative organ, it may be registered and stored in advance, and a decision on disposition shall be made within 7 days, and during this period, the parties or relevant persons must not destroy or transfer the evidence.
Where law enforcement personnel have a direct interest in the parties, they shall recuse themselves.
Article 38: At the conclusion of the investigation, the responsible person for the administrative organ shall conduct a review of the results of the investigation, and make the following decisions based on different circumstances:
(1) Where there is truly illegal conduct that should be subject to administrative punishment, an administrative punishment decision is to be made on the basis of the severity of the circumstances and the specific circumstances;
(2) Where the illegal conduct is minor and administrative punishment may not be given in accordance with law, administrative punishment is not to be given;
(3) Where the facts of the violation cannot be established, administrative punishments must not be given;
(4) Where the illegal conduct already constitutes a crime, it shall be transferred to the judicial organs.
Where the circumstances are complicated or major violations are to be given heavier administrative punishments, the responsible persons of the administrative organs shall collectively discuss and make a decision.
Article 39: Administrative organs giving administrative punishments in accordance with the provisions of article 38 of this Law shall draft an administrative punishment decision document. The administrative punishment decision shall indicate the following matters:
(1) The names and addresses of the parties;
(2) Facts and evidence of violations of laws, regulations, or rules;
(3) The type and basis of administrative punishments;
(4) The methods and time limits for performing administrative punishments;
(5) The channels and time limits for applying for administrative reconsideration or initiating an administrative lawsuit if they are dissatisfied with an administrative punishment decision;
(6) The name of the administrative organ that made the administrative punishment decision and the date on which the decision was made.
The administrative punishment decision must bear the seal of the administrative organ that made the administrative punishment decision.
Article 40: The administrative punishment decision shall be delivered to the parties at the scene after it is announced; Where the parties are not present, the administrative organs shall send the administrative punishment decision to the parties within 7 days in accordance with the relevant provisions of the Civil Procedure Law.
Article 41: Where administrative organs and their law enforcement personnel do not follow the provisions of articles 31 and 32 of this Law to inform the parties of the facts, reasons, and basis for giving administrative punishments, or refuse to hear the parties' statements or defenses, the administrative punishment decision cannot be sustained; Except where a party waives the right to make a statement or defense.
Section 3: Hearing Procedures
Article 42: Before administrative organs make administrative punishment decisions such as ordering the suspension of production or business, revoking permits or licenses, or imposing a relatively large fine, they shall inform the parties that they have the right to request a hearing; Where parties request a hearing, the administrative organ shall organize a hearing. The parties shall not bear the costs of the administrative organ's organization of the hearing. Hearings are organized in accordance with the following procedures:
(1) Where a party requests a hearing, it shall be submitted within 3 days of being informed by the administrative organ;
(2) The administrative organ shall notify the parties of the time and place of the hearing 7 days before the hearing;
(3) Hearings are held in public, except where state secrets, commercial secrets, or personal privacy are involved;
(4) The hearing is to be presided over by personnel designated by the administrative organ who are not investigators in the case; Where the parties feel that the presiding officer has a direct interest in the case, they have the right to apply for recusal;
(5) The parties may personally participate in the hearing, and may also retain one or two persons to represent them;
(6) When holding a hearing, investigators submit facts, evidence, and recommendations for administrative punishment of the parties' violations; The parties make defenses and cross-examine evidence;
(7) A record shall be made of the hearing; The record shall be given to the parties to sign or affix a seal after being reviewed and corrected.
Where parties have objections to administrative punishments restricting personal liberty, it is to be implemented in accordance with the relevant provisions of the Public Security Administration Punishment Regulations.
Article 43: After the hearing is completed, the administrative organs are to make a decision in accordance with the provisions of article 38 of this Law.
Chapter VI: Enforcement of Administrative Punishments
Article 44: After an administrative punishment decision is made in accordance with law, the parties shall perform it within the time limit for the administrative punishment decision.
Article 45: Where parties are dissatisfied with an administrative punishment decision and apply for administrative reconsideration or raise an administrative lawsuit, enforcement of the administrative punishment is not stopped, except as otherwise provided by law.
Article 46: The administrative organ that makes the decision to impose fines shall be separated from the institution that collects the fine.
Except for fines collected on the spot in accordance with the provisions of articles 47 and 48 of this Law, the administrative organ that made the administrative punishment decision and its law enforcement personnel must not collect the fine on their own.
The parties shall pay the fine to the designated bank within 15 days of receiving the administrative punishment decision. Banks should accept fines and pay them directly to the state treasury.
Article 47: In any of the following circumstances, law enforcement personnel may collect fines on the spot in accordance with the provisions of article 33 of this Law:
(1) A fine of less than 20 RMB is given in accordance with law;
(2) It is difficult to enforce after the fact that it is not collected on the spot.
Article 48: In remote, water-based, or inaccessible areas, after administrative organs and their law enforcement personnel make a decision to impose fines in accordance with the provisions of articles 33 and 38 of this Law, and the parties have real difficulties in paying the fines to the designated banks, the administrative organs and their law enforcement personnel may collect the fines on the spot upon the parties' request.
Article 49: Where administrative organs and their law enforcement personnel collect fines on the spot, they must issue a receipt for fines uniformly issued by the finance department of the province, autonomous region, or municipality directly under the Central Government to the parties; If the fine is not collected and issued by the financial department, the party has the right to refuse to pay the fine.
Article 50: Fines collected by law enforcement personnel on the spot shall be handed over to the administrative organs within 2 days of the date on which the fines are collected; Fines collected on the spot on the water shall be handed over to the administrative organ within 2 days of the date of arrival; The administrative organ shall pay the fine to the designated bank within two days.
Article 51: Where parties fail to perform on an administrative punishment decision within the time limit, the administrative organ that made the administrative punishment decision may employ the following measures:
(1) Where fines are not paid when due, an additional fine of 3% of the amount of the fine is to be imposed for each day;
(2) In accordance with the provisions of law, auction off sealed or seized property or transfer frozen deposits to offset fines;
(3) Apply to the people's court for compulsory enforcement.
Article 52: Where parties truly have financial difficulties and need to extend or pay fines in installments, payment may be suspended or paid in installments upon application by the parties and approval by the administrative organs.
Article 53: Except for items that shall be destroyed in accordance with law, illegal property confiscated in accordance with law must be publicly auctioned or disposed of in accordance with relevant state provisions.
Fines, confiscation of unlawful gains, or confiscation of funds from the auction of illegal property must all be turned over to the state treasury, and no administrative organ or individual may withhold, privately divide, or covertly divide privately in any form; The financial department shall not, in any form, return fines, confiscated illegal gains or confiscated auction proceeds to the administrative organ that made the administrative punishment decision.
Article 54: Administrative organs shall establish and complete systems for oversight of administrative punishments. People's governments at the county level or above shall strengthen oversight and inspections of administrative punishments.
Citizens, legal persons, or other organizations have the right to appeal or report administrative punishments imposed by administrative organs; Administrative organs shall earnestly review and discover that there are errors in administrative punishments, they shall take the initiative to make corrections.
Chapter VII: Legal Responsibility
Article 55: In any of the following circumstances, where an administrative organ imposes an administrative punishment, the administrative organ at a higher level or the relevant department shall order it to make corrections, and may give administrative sanctions to the directly responsible person in charge and other directly responsible personnel in accordance with law:
(1) There is no legally-prescribed basis for administrative punishment;
(2) Changing the type and range of administrative punishments without authorization;
(3) Violating legally-prescribed administrative punishment procedures;
(4) Violating the provisions of Article 18 of this Law on entrusted punishments.
Article 56: Where administrative organs impose penalties on parties without using fines or confiscation of property receipts, or use fines or confiscation receipts issued by non-statutory departments, the parties have the right to refuse the punishment and have the right to report it. The administrative organ at a higher level or the relevant department shall confiscate and destroy the illegal documents used, and the directly responsible managers and other directly responsible personnel shall be given administrative sanctions in accordance with law.
Article 57: Where an administrative organ collects a fine on its own in violation of the provisions of Article 46 of this Law, or the financial department returns the fine or auction money to the administrative organ in violation of the provisions of Article 53 of this Law, the administrative organ at the higher level or the relevant department shall order it to make corrections, and the person in charge who is directly responsible and other persons who are directly responsible shall be given administrative sanctions in accordance with law.
Article 58: Where an administrative organ withholds, privately divides, or covertly divides a fine or confiscated unlawful gains or property, the finance department or relevant department shall recover it, and the directly responsible person in charge and other directly responsible personnel shall be given administrative sanctions in accordance with law; where the circumstances are serious and constitute a crime, criminal responsibility is pursued in accordance with law.
Where law enforcement personnel take advantage of their position to solicit or accept property from others, or collect fines for their own use, and a crime is constituted, criminal responsibility is to be pursued in accordance with law; If the circumstances are minor and do not constitute a crime, an administrative sanction shall be given in accordance with law.
Article 59: Where an administrative organ uses or damages seized property and causes losses to the parties, it shall compensate in accordance with law, and the directly responsible managers and other directly responsible personnel shall be given administrative sanctions in accordance with law.
Article 60: Where administrative organs illegally carry out inspection measures or enforcement measures, causing damage to citizens' persons or property, or causing losses to legal persons or other organizations, they shall compensate in accordance with law, and give administrative sanctions to the directly responsible managers and other directly responsible personnel in accordance with law; where the circumstances are serious and constitute a crime, criminal responsibility is pursued in accordance with law.
Article 61: Where administrative organs, in order to obtain the private interests of their own units, do not transfer those that should be transferred to the judicial organs for investigation of criminal responsibility in accordance with law, and replace the criminal punishment with an administrative punishment, the administrative organ at the level above or the relevant department is to order corrections; if the correction is refused, the person in charge who is directly responsible shall be given an administrative sanction; Those who twist the law for personal gain, or shield and connive at illegal conduct, are to be pursued for criminal responsibility in accordance with the provisions of Criminal Law article 188.
Article 62: Where law enforcement personnel derelict their duties and fail to stop or punish illegal conduct that should be stopped or punished, causing harm to the lawful rights and interests of citizens, legal persons, or other organizations, the public interest, and social order, the directly responsible managers and other directly responsible personnel are to be given administrative sanctions in accordance with law; where the circumstances are serious and constitute a crime, criminal responsibility is pursued in accordance with law.
Chapter VIII: Supplementary Provisions
Article 63: The State Council is to formulate specific implementation measures for the provisions of Article 46 of this Law on separating the decision to impose fines from the collection of fines.
Article 64: This Law shall come into force on October 1, 1996.
Where the provisions on administrative punishments in laws and regulations formulated before the promulgation of this Law are inconsistent with this Law, they shall be revised in accordance with the provisions of this Law as of the date of promulgation of this Law, and the revision shall be completed before December 31, 1997.
Attach:
Relevant provisions of the Criminal Code
Article 188:Where judicial personnel twist the law for personal gain, cause a person to be prosecuted while they know to be innocent, intentionally shield a person they know is guilty and prevent him from being prosecuted, or deliberately reverse black and white to make a judgment that perverts the law, he is to be sentenced to up to five years imprisonment, short-term detention, or deprivation of political rights; where the circumstances are especially serious, the sentence is to be five or more years imprisonment.
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